IMPORTANT: PLEASE READ THIS AGREEMENT CAREFULLY, PARTICULARLY THE MUTUAL ARBITRATION AGREEMENT IN SECTION 10. 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.
The Osprey Platform
Osprey provides a mobile and web-based platform that connects you and other consumers (“Customers”), restaurants and/or other merchandise businesses (“Retailers”), and independent delivery contractors (“Drivers”) to allow you and other Customers to place orders for pickup or delivery. The Platform facilitates these on-demand delivery or pickup services. Osprey is not a restaurant, retailer, food preparation business, merchandise seller, or delivery service.
You are an independent provider of delivery services who is authorized to perform such services in the geographical location in which you operate. You acknowledge and understand that you are entering into this Agreement as an independent contractor, and not as an employee of Osprey, any Retailer, or a third party. For further clarification, this is not an employment agreement, and nothing in this Agreement shall create an employment relationship between the Parties, or any third party. You acknowledge that when you provide services through the Platform, you are doing so on your own behalf, and not on behalf of Osprey.
1. Other Terms.
By accepting this Agreement you’re also agreeing to Osprey’s Terms & Conditions, which we encourage you to read and have incorporated into this Agreement by reference. You further agree to be bound by the terms in this Agreement.
2. Driver Representations, Warranties, and Agreements.
By providing Services as a Driver through the Platform, you are representing, warranting, and agreeing that:
- You have the full authority to enter into this Agreement and to perform any responsibilities herein.
- You meet all legal requirements and possess and will maintain all necessary licenses and permits required to perform any and all Services listed in this Agreement. You understand that Osprey may request proof of valid licenses, permits, vehicle registration, insurance, or for background information such as your criminal or driving record, and you, if applicable law permits us to request such information, agree to provide Osprey with it.
- You will perform the Services in a timely, efficient, safe, and lawful manner, and you shall be responsible for determining the most timely, efficient, safe, and lawful manner of performing the Services.
- Pursuant to our Community Guidelines, you will not discriminate against any other User.
- You consent to receive and accept communications from Osprey, and authorized Retailers, and/ or Customers, including without limitation SMS and text message(s), email(s), phone call(s), and push notification(s) to any contact you have provided to Osprey, and that such communications are not violations of the Telephone Consumer Protection Act (the “TCPA”). You further agree that Osprey may contact you through any contact methods you have provided to us, directly or indirectly, and that you are authorized to receive communications at said contact method(s), and that you will notify Osprey immediately in the event that you no longer own or end the use of the said phone number(s). Message and data rates may apply. You agree to only contact Retailers and Customers when required to perform the Services, and you agree that you are responsible for ensuring that your communications between any Retailer or Customer will be in compliance with the TCPA.
- You will only use Retailer and Customer information to perform the Services, and not to provide to any other third party or entity. You understand that Retailer and Customer information is considered confidential and proprietary (“Confidential Information”), and you expressly agree to uphold the confidentiality of any Confidential Information you gain knowledge of. Furthermore, you will not disclose any Confidential Information to another person, third party, or entity, including when performing services for any other person, third party, or entity, except as set forth in this Agreement.
- You are responsible for complying with all local, state and federal laws in relation to deliveries containing alcohol, if you choose to accept such Delivery Opportunities.
- Your use of the Platform will be solely for lawful purposes, and you will not commit any fraudulent acts whatsoever in connection with the Services, including attempting to defraud Osprey, or any Retailers or Customers.
- You are responsible for paying any applicable local, state, or federal taxes for payments received by you, including cash gratuities, as a result of performing the Services.
3. Driver Services.
- From time to time, the Platform will notify you of an opportunity to complete a delivery from a Retailer to a Customer through the Platform (a “Delivery Opportunity”). If you accept a Delivery Opportunity, you acknowledge that you will be contractually obligated to, in a timely and safe manner, complete the delivery by retrieving the order from the correct Retailer, deliver the order to the customer, and, when the customer ordered from a Non-Partnered Retailer, place the order by contacting the correct Retailer through means other than third-party platforms or services (the “Services”).
- You acknowledge and explicitly agree that you are an independent business that provides delivery and other services as listed herein. You further agree that you are an independent contractor, and not an employee of Osprey, and that training is neither required nor provided by Osprey in order to provide the services. You are not required by Osprey to purchase, wear, or use any Osprey-branded clothing, equipment, or product, including ones that contain Osprey’s, name, or logo. However, you may choose to do so at your sole discretion.
- You are free to reject, accept, or ignore any Delivery Opportunity in your sole discretion and business judgment. You acknowledge that Osprey does not set any minimum or maximum amount of Services that you are obligated to perform. Furthermore, you acknowledge that Osprey may contact you in an effort to assist you with performing the Services, but you are responsible for determining and selecting the most efficient, effective, and safe means of performing the services, and Osprey shall not control the means by which you perform the services. If you choose to perform the services, you are also responsible for doing so in a safe and lawful manner.
- You are free to determine and select the times in which you intend to use or access the Platform
- To perform Services through the Platform, you may need to possess certain personnel, tools, vehicles, and equipment, such as a mobile phone (collectively, “Equipment”). You agree that you possess the necessary Equipment to perform the Services listed in this agreement, and understand that you are under no obligation to purchase, lease, rent, or borrow any Equipment from Osprey in order to perform the Services, or as a condition of entering into this Agreement. You are responsible for ensuring that any Equipment you use conforms to any and all applicable laws, and for all costs and expenses incurred for performing the Services, including without limitation traffic tickets, tolls, fuel, parking fees, insurance, inspections, cell phone plans, maintenance, depreciation, and any other costs or expenses.
- You agree that Osprey, in its sole discretion, may require you to consent and pass a background check based on your social security number, at any time and for any reasonable reason, for you to retain or gain access to the Platform.
- You agree that there is no number of Delivery Opportunities that Osprey is obligated to make available to you.
- If you fail to complete a Service (a “Service Failure”) due to your omission(s) you must give up all or part of the fees agreed upon for completion of that Service. If you choose to dispute a Service Failure, you agree to resolve the dispute in accordance with the Payment Disputes arrangement as set forth in Section 7.
- You agree that you will immediately notify Osprey in writing by emailing firstname.lastname@example.org if your services or scope of work differ in any way from what is outlined in this Section 3.
4. Your Personnel.
- Subject to the terms of this Agreement and applicable law, you may hire or engage other individuals as employees or subcontractors (collectively “Personnel”) of you to perform some or all of the Services. All Personnel must (i) accept the terms of this Agreement (ii) have their own individual account on the Osprey Platform with their own username and password and (iii) be eligible to perform the Services as outlined in this Agreement. You are fully responsible for your Personnel, including their performance of the Services and their compliance with this Agreement.
- You are fully responsible for (i) the payment and compensation of all amounts, including any benefits and/or expenses, to your Personnel (ii) any payment from your Personnel to you and (iii) all required local, state, and federal income tax withholdings, unemployment insurance, and social security taxes related to your Personnel. Unless required by applicable law, Osprey is not responsible for withholding any compensation from your Personnel.
- As a condition of using any Personnel, you agree that all Personnel must accept the terms of this Agreement, and that you will enforce this Agreement through a separate written agreement between you and your Personnel. You agree to provide a copy of said agreement to Osprey prior to your Personnel performing any of the Services.
- You acknowledge and agree that you enter into this Agreement as an independent contractor, and that you and Osprey are in a business relationship. You understand that (i) you operate a business that is independent and separate from Osprey (ii) you are providing Services under this Agreement as an independent contractor, and not as an employee of Osprey (iii) this Agreement does not create a joint-venture, partnership, agency, or business entity; and (iv) this Agreement does not create an employment relationship between you and Osprey, or between you and a third-party Retailer and you will neither receive nor be entitled to any employee benefits available to Osprey employees, or employees of a third-party Retailer.
- You do not have the authority to bind Osprey to agreements, or to present yourself as an officer, director, employee, or authorized representative of Osprey
- You have the right to perform services for another company or customer, even if such services are in direct competition with Osprey. However, you agree that you will not use or access the Platform with the intent of providing information about the Platform, including its operations, to a competing business. Your right to compete with Osprey or perform services for another company or customer that competes with Osprey shall survive termination of this Agreement.
- You agree that you are responsible for paying any and all taxes and/or contributions, and you agree that Osprey is not responsible for paying or withholding any taxes or contributions, or paying any penalties, fines, fees, or levies that may be brought against you in the event that you fail to pay such taxes and/or contributions.
6. Payment for Services.
- Osprey reserves the right to modify the rates at which we pay Drivers, and you acknowledge and agree that you will be paid for each individual Service that you fully complete, and not based on a salary or hourly rate. Osprey will pay you for a Service within 30 days of completion of said Service. You understand and agree that you will be paid for each Service in accordance with the Driver Pay Model, which can be viewed here.
- Customers may be given the opportunity to provide gratuities to you through the Platform, or they may choose to provide gratuities in cash. You are entitled to 100% of all gratuities paid forth by the Customer to you—whether through the Platform or in cash—and Osprey acknowledges that it has no right to interfere with or obtain any gratuity paid forth by the Customer to you.
- You are required to withdraw all earnings from your Osprey Driver Account when you wish to be paid. Osprey shall not be responsible for directly depositing any fees or earnings to you or any of your bank accounts. You are solely responsible for any processing fees incurred from withdrawing earnings from your Osprey Driver Account.
- Nothing in this Agreement prevents you from negotiating a different rate of pay, or from negotiating the payment for an individual Service. You understand that Osprey will, in good faith, review such negotiations, but is under no obligation to fulfill them. Additionally, nothing in this Agreement prevents you from accepting or rejecting Delivery Opportunities for the purpose of earning different rates of pay.
- You understand that Osprey may ask for your tax identification number, and you agree to provide Osprey with such information. We need this information in order to send you an accurate and appropriate IRS Form 1099 on a calendar basis. If you fail to provide Osprey with your tax identification number, you are responsible for any penalties that you become subjected to for failing to furnish your tax identification number to us.
7. Payment Disputes.
- You agree that, in the event of a Service Failure, you may forfeit all or a portion of the payment(s) described above in Section 6(a)-(d). Osprey’s withholding of payment shall be based upon an investigation and any relevant information provided by the Customer, Retailer, you, or any third party. The percentage of fault held by you shall be decided by Osprey. You have the right to challenge Osprey’s decision through the provisions contemplated in this Agreement. Prior to challenging Osprey’s decision, you shall notify Osprey in writing at email@example.com and include any relevant proof or information in your notice.
- In the event Osprey fails to allow you to withdraw funds by means set forth in this Agreement, you shall have the right to seek proper payment by any legal means acknowledged in this Agreement, provided, however, you first inform Osprey in writing of the failure and provide Osprey a reasonable amount of time to cure it.
At your own expense, during the term of this Agreement you agree that you will maintain current insurance of the types and in the amounts equal to or greater than required by law, as a condition providing services through the Platform. You acknowledge that you are solely responsible for determining which insurance you are required to have by law in order to perform the services within this Agreement, including workers’ compensation insurance, and that any existing insurance, including auto insurance, may not cover performance of the services listed herein. You acknowledge that failing to maintain insurance as required in this Agreement is a breach of this Agreement, and pursuant to the terms in Section 12 will result in your Driver account being suspended or deactivated, and/or this Driver Agreement being terminated.
You agree that you will provide Osprey with proof of insurance if we request it, and if applicable law permits us to request it. If you cancel any insurance or policy required by this Agreement, you agree that you will provide Osprey with 14 days written notice prior to doing so.
You acknowledge that you are not entitled to any insurance coverage whatsoever by Osprey.
- You agree to indemnify, protect, defend, 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 and against (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 you and/or your Personnel under this Agreement, including without limitation injury or death (including to you and/or your Personnel); (ii) any and all claims, demands, damages, suits, losses, liabilities and causes of action arising from your 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 you and/or your Personnel as a result of using the Platform to perform Services; and (iv) all costs of your 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.
- You acknowledge and agree that your responsibilities under this Section 9 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.
10. Mutual Arbitration Agreement.
- You and Osprey (the “Parties”) agree that this Mutual Arbitration Agreement shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16) (“FAA”), even in the event that either or both of the Parties are exempted from the FAA. In the event, and only in the event that the arbitrator determines the FAA does not apply, the state law governing arbitration agreements in the state in which you perform operations shall apply.
- The Parties mutually agree to resolve any and all disputes, conflicts, controversies, or claims (each, a “Claim”) between you and Osprey arising out of or in relation to this Agreement, including your classification as an independent contractor; payments received by you; the deactivation or suspension of your account; Services performed by you; the breach of this Agreement, express or implied; Claims of harassment, discrimination, and/or retaliation, and Claims arising under or related to any law, ordinance, or regulation (or their respective state or local equivalents), including but not limited to the Civil Rights Act of 1964, Americans with Disabilities Act, Age Discrimination in Employment Act, Family Medical Leave Act, Fair Labor Standards Act, state and local wage and hour laws, state and local statutes or regulations addressing the same or similar subject matters; personal, physical, or emotional injury (excluding any claims covered under the Workers’ Compensation Act, including benefit claims); and all other claims arising out of or in relation to your relationship with Osprey, or the termination thereof, by arbitration, rather than in court. To clarify, the Parties explicitly agree to resolve all Claims through arbitration, and, to the fullest extent permitted by applicable law and except as outlined within this Mutual Arbitration Agreement, explicitly waive their right to have any Claim resolved in a court, except as set forth in this Mutual Arbitration Agreement. The Parties further agree that resolving disputes through arbitration rather than in court has mutual benefits for the Parties, such as a faster, less expensive resolution.
- The Parties agree that this Mutual Arbitration Agreement shall apply solely to claims between you and Osprey, and not any claims between any third party beneficiaries and Osprey. Furthermore, any claim that, as set forth by applicable law, cannot be arbitrated shall not be covered by this Mutual Arbitration Agreement.
- The Parties agree that at least 30 days prior to commencing arbitration against the opposite party, the complaining party shall notify the opposite party of any Claim and in good-faith attempt to resolve the Claim informally. Individual resolution(s) will occur through a phone call or video chat. In the event you need to notify Osprey that you intend to initiate an individual resolution call, please send an email with your name, email, a description of your claim, and the relief sought to firstname.lastname@example.org. During the time between receiving notice and conferring via a call, the Parties are free to attempt to resolve all claims. The Parties acknowledge that notifying the opposite party and engaging in an individual resolution call is a requirement that must be satisfied prior to commencing arbitration.
- The Parties agree that (i) the arbitration proceeding will not accompany any other matters, parties, proceedings, or third-parties (ii) the Parties and the arbitrator will 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 (iii) 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 (iv) the arbitral tribunal shall be appointed exclusively by the arbitrator in compliance with the CPR Rules and (v) the Arbitrator’s decision is final and binding on you and Osprey.
- Class Action Waiver - IMPORTANT. By entering into this Agreement, the Parties both waive their right to have any Claim brought, heard, pursued, or to participate in, a class action, representative action, or collective action. Notwithstanding any other provision in this Mutual Arbitration Agreement, or the CPR rules; (i) Only a court of competent jurisdiction, not an arbitrator, may determine if any part of all of this Class Action Waiver is void, voidable, or unenforceable; and (ii) In the event that this Class Action Waiver is determined to be unenforceable, any claim will be filed as a class action, representative action, or collective action, and will be litigated in a court of competent jurisdiction.
- 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 Agreement prevents a government agency from investigating any report, claim or charge otherwise covered by this Mutual Arbitration Agreement.
- The Parties agree that any arbitration shall occur before an arbitrator that was mutually selected by the Parties, and any arbitration shall be governed by the CPR Administered Arbitration Rules and, if applicable, the CPR Employment-Related Mass-Claims Protocol (collectively, the “CPR Rules”). You may find a copy of the CPR Rules by visiting CPR’s website www.cpradr.org, or using a search engine such as www.google.com to search for, “CPR Administered Arbitration Rules” and “CPR Employment-Related Mass-Claims Protocol”. If for whatever reason the Parties are unable to mutually agree on an arbitrator, either party may apply to a court of competent jurisdiction for appointment of a neutral arbitrator, and the applying party shall have control over the location where the arbitration will be conducted, provided that the location is within 50 miles of the applying party’s address as of the date this Agreement was entered into. Whether the Parties mutually agree on an arbitrator, or in the event that a court appoints an arbitrator, the arbitrator must resolve any and all Claims on an individual basis.
The Parties agree that the terms in this Section 10 shall survive any termination of this Agreement, or the relationship of the Parties.
11. Intellectual Property Ownership.
Osprey or its licensors explicitly own all media, materials, and intellectual property rights contained within the Platform. This Agreement is not a sale of and does not grant you any ownership over the Platform, in part or in whole. You agree not to obscure, alter, change, modify, or create derivative works from any copyright, trademark, service mark, or any other proprietary ownership notices contained within the Platform, or the Platform itself. All rights not explicitly granted to you by Osprey in this Agreement shall be the sole rights of Osprey.
You may gain access or be exposed to confidential and proprietary information, including without limitation information relating to Osprey’s business, such as strategic, technical, and financial information, or trade secrets, information relating to another user, such as their name, phone number or other contact information, address, order details (collectively, “Confidential Information”). By entering into this Agreement, you agree to (i) hold and maintain any and all Confidential Information in strict confidence; (ii) not disclose, use, or otherwise make available any Confidential Information without the written consent of Osprey, except as required to perform the Services in compliance with this Agreement; and (iii) notify Osprey in writing (including email) in the event that you are required by applicable law to disclose, use, or make available any Confidential Information, prior to the disclosure of such Confidential Information, and assist Osprey in seeking an appropriate protective order or other remedy. In the event that such attempts at seeking an appropriate protective order or other remedy are unsuccessful, you agree to only disclose the portion of Confidential Information that you are legally obligated to.
Subject to your compliance with this Agreement, Osprey grants you a limited, non-exclusive, non-sublicensable, non-transferable, and revocable license to access and use the Platform only in compliance with this Agreement and all legal requirements that are applicable to you or your use of the Platform. Osprey reserves any and all rights not expressly granted to you. Osprey, in its sole discretion, may revoke this license at any time and for any reason or for no reason.
12. Term and Termination.
This Agreement is effective immediately upon your acceptance of this Agreement, including if you create a driver account, and even if you are not eligible or choose not to perform any of the Driver Services. You may terminate this Agreement upon seven (7) days written (including by email) notice to Osprey. Osprey may terminate this Agreement and your Driver Account immediately upon written notice (including by email) for any of the reasons outlined in our Driver Guidelines, which is incorporated into this Agreement by reference.
Osprey reserves the right to modify, change, amend, or update this Agreement, or any agreement hyperlinked within this Agreement, with or without prior notice, and we will post revised terms for this Agreement at ospreydelivery.com/legal/driver-agreement. Such modifications or updates will be effective immediately upon being posted. If you disagree with the effective terms you may terminate this Agreement immediately through means provided in this Agreement. We encourage you to review this Agreement periodically and familiarize yourself with the effective Agreement, because as long as you use or access the Platform, you are agreeing to the effective Agreement.
Severability. Except as otherwise provided in this Agreement, if any part of this Agreement is declared unlawful or unenforceable, that part shall be severed, and the remainder of this Agreement shall remain in full force and effect. If either Party fails to enforce any right or section in this Agreement, it shall not constitute a waiver of such right or section unless agreed to by the respective Party in writing.
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.
Third-Party Terms. You are free to use whichever apps, websites, or other tools (“Third-Party Tools”) you deem necessary to perform the Services listed herein. You acknowledge that such Third-Party Tools may have their own agreements or policies that you must read and agree to before using them, and you agree that you are solely responsible for doing so. You agree that any Third-Party Tools you use are at your sole discretion, and at your own risk.
Governing Law. This Agreement is governed by the laws of the State of North Carolina.