G-Runner Courier Agreement
Effective March 21, 2020
IMPORTANT: PLEASE REVIEW THIS AGREEMENT CAREFULLY, SPECIFICALLY THE MUTUAL ARBITRATION PROVISION IN SECTION 10. UNLESS YOU OPT OUT OF ARBITRATION AS PROVIDED BELOW, THIS AGREEMENT REQUIRES THE PARTIES TO RESOLVE DISPUTES THROUGH FINAL AND BINDING ARBITRATION ON AN INDIVIDUAL BASIS TO THE FULLEST EXTENT PERMITTED BY LAW. BY ACCEPTING THIS AGREEMENT, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND VOLUNTARILY AGREED TO ALL OF THE TERMS OF THIS AGREEMENT, INCLUDING THE MUTUAL ARBITRATION PROVISION, AND THAT YOU HAVE TAKEN TIME AND SOUGHT ANY ASSISTANCE NEEDED TO COMPREHEND AND CONSIDER THE CONSEQUENCES OF THIS IMPORTANT BUSINESS DECISION.
Gesture US, Inc. provides and maintains an online marketplace and mobile platform on which individual customers (collectively “Customers”); restaurants, retail stores, and other merchants (collectively “Merchants”), and independent providers of delivery services connect to facilitate the purchase, fulfillment, and, when applicable, delivery of goods from Merchant(s) to Customer(s). You are an independent provider of delivery services, authorized and able to satisfy any and all legal requirements necessary to perform the services contemplated by this Agreement in the geographic location(s) in which You operate. You understand and agree that You may enter into this Agreement either as an individual or a business entity, and You desire to enter into this Agreement for the right to access Gesture US, Inc. in order to receive Delivery Opportunities (as defined in section 3A below). In consideration of these recitals and the mutual promises below, and for other good and valuable consideration, You and Gesture US, Inc. agree as follows:
1. Purpose Of Agreement
1A. This Agreement governs the entire relationship between the Parties, and establishes the Parties’ respective rights and obligations arising out of this relationship. The Parties acknowledge and agree that this Agreement is between independent businesses that are separately owned and operated. The Parties intend this Agreement to create the relationship of principal and independent contractor and not that of employer and employee. Neither Party shall have the right to bind the other by contract (or otherwise) except as specifically provided in this Agreement.
1B. Nothing in this Agreement requires You to accept any Delivery Opportunity(s) from Gesture US, Inc., and nothing in this Agreement shall guarantee You any particular volume of Delivery Opportunities or Deliveries for any particular time period.
1C. Gesture reserves the right, at any time, to modify external documents referenced and incorporated into this Agreement and/or any information referenced via hyperlink. Such modifications shall become effective upon posting. Your continued use of Gesture after any such changes shall constitute Your consent to such changes.
1D. You acknowledge and agree that if Gesture modifies any provision of this Agreement (including any information referenced via hyperlink) you will not have a renewed opportunity to opt out of arbitration. You further acknowledge and agree that Your acceptance of this Agreement does not create a renewed opportunity to opt out of arbitration (if applicable).
2. Your Operations
2A. You understand and agree that in providing any services under this Agreement, You are not an employee or customer of Gesture, any Merchant selling goods through Gesture, or any Customer purchasing goods through Gesture.
2B. You understand that: (i) You are free to select the times You wish to use Gesture; (ii) You are free to accept, reject, or ignore any particular Delivery Opportunities made available to You through Gesture; and (iii) You have the sole right to control the manner and means by which You perform Deliveries through Gesture.
2C. You represent that, as applicable, You possess all equipment, including mobile telephone, modes of transportation, etc. (collectively “Equipment”) and personnel necessary to lawfully provide the services contemplated by this Agreement. Moreover, You agree that You are solely responsible for ensuring that such Equipment conforms to applicable laws, including those pertaining to health, safety, inspection, and operational capability, and that You are responsible for all costs and expenses You may incur under this Agreement, including, but not limited to, traffic tickets, tolls, parking fees, inspections, insurance, and any other costs related to Equipment. Except as otherwise required by law, You assume all risk of damage or loss to Your Equipment.
2D. Nothing in this Agreement prohibits You, to the extent permitted by law and subject to the terms of this Agreement, from hiring, subcontracting, or otherwise engaging any other person (a “Subcontractor”) to assist You with the performance of a Delivery, provided that any such Subcontractor accepts the terms of this Agreement and separately completes the process to receive Delivery Opportunities from Gesture. You agree to bear sole responsibility for the direction and control over any Subcontractor. Specifically, to the extent You engage a Subcontractor, unless otherwise mandated by law, You assume full and sole responsibility for the payment of all amounts due or required to be withheld from Subcontractor(s) for work performed under this Agreement, including but not limited to any wages, benefits and expenses, state and federal income tax withholdings, unemployment insurance contributions, and/or social security taxes. Gesture shall have no responsibility for money or obligations You may owe Subcontractor(s), and neither You nor any Subcontractor(s) shall participate in or receive any wages or other benefits available to Gesture’ employees. The Parties acknowledge and agree that any provisions of this Agreement reserving ultimate authority in Gesture have been inserted solely to achieve compliance with federal, state, or local laws, regulations, and interpretations thereof, and/or to ensure the safety of Gesture for all users.
2E. Nothing in this Agreement shall prevent the Parties from at any time engaging in similar arrangements or business with others, including the Parties’ direct competitors, and You agree to immediately notify Gesture in writing if You believe You have been restricted in any way by Gesture from engaging with or providing your services to any other entity(s).
2F. You understand and agree that You are not required at any time to wear or use any clothing or equipment provided by or bearing Gesture’ name or logo; or to purchase, lease, or rent any products, equipment, or services from Gesture.
2G. You agree that before you receive access to Gesture, You will submit to and pass a background check based on Your own social security number. You also agree that, at its sole discretion and in accordance with applicable law, Gesture may require You to submit to and pass additional background check(s) conducted with Your consent.
2H. SMS and push communications from Gesture, its affiliates or its representatives and/or Merchants or Customers, may include but are not limited to: (1) operational communications concerning your user account, sign up progress to become a Contractor, use of the Platform, or features available on the Platform, (2) communications relating to Deliveries and Delivery Opportunities, including delivery fees, (3) news concerning Gesture and industry developments that affect your relationship with us, and (4) account verification communications. With your consent, Gesture may also send you marketing SMS regarding promotions from us or our third-party partners. Message and data rates may apply.
2I. You agree that Gesture, its affiliates or its representatives may contact You (including for marketing purposes from Gesture or our third-party partners where permitted by law) by email, phone, push notifications, SMS, or by other comparable means (including by use of an automatic telephone dialing system) at the email address(es), phone(s), or phone number(s) You provide to Gesture.
2J. You also agree and consent to SMS and push communications from Gesture, its partners, affiliates, or representatives, and/or Merchants or Customers, that may include but are not limited to: (1) operational communications concerning Your user account, sign up progress to use Gesture, use of Gesture, or features available from Gesture; (2) communications relating to Deliveries and Delivery Opportunities, including any money paid to You fees for services provided; (3) news concerning Gesture and industry developments that affect Your relationship with Gesture; and (4) account verification communications. Message and data rates may apply.
YOU CAN UNSUBSCRIBE FROM Gesture’ MARKETING EMAIL LIST BY FOLLOWING THE UNSUBSCRIBE OPTIONS IN THE MARKETING EMAIL ITSELF. PLEASE BE ADVISED THAT IF YOU OPT OUT OF MARKETING EMAILS, Gesture MAY STILL SEND YOU EMAILS ABOUT YOUR ACCOUNT OR ANY TRANSACTIONS BETWEEN THE PARTIES.
IF YOU WISH TO OPT OUT OF MARKETING TEXT OR SMS MESSAGES, IN RESPONSE TO SUCH A MESSAGE YOU MAY REPLY “STOP” FROM THE MOBILE DEVICE RECEIVING THE MESSAGE. YOU ACKNOWLEDGE THAT YOU ARE NOT REQUIRED TO CONSENT TO RECEIVE MARKETING TEXTS OR CALLS AS A CONDITION OF PERFORMING SERVICES USING Gesture.
3A. Gesture may notify You of the opportunity to complete a delivery from a Merchant to a Customer (each, a “Delivery Opportunity”), and You may have the option to choose automatic acceptance or other preferences for certain Delivery Opportunities. For a Delivery Opportunity You accept (each, a “Delivery”), You agree to complete the delivery of the good(s) purchased by a Customer in a form free from tampering, in the condition intended by the Customer and/or Merchant, according to the terms of this Agreement and/or as otherwise set forth in the G-Runner Help Center, and in compliance with any and all applicable federal, state, and local laws, rules and regulations, including but not limited to applicable food and health safety laws, rules, and/or regulations. You further agree that for any Delivery that includes any age-restricted items, including but not limited to alcohol, tobacco, e-cigarettes, or vaporizers, You are responsible for ensuring the Delivery complies with all federal, state, and local laws, including but not limited to ensuring that the individual accepting the Delivery is the individual who placed the order, has provided valid identification, is the required age, and is not intoxicated.
3B. You agree that Gesture may provide You with a prepaid debit card that can be used to pay for certain Deliveries. Any unauthorized use of this prepaid debit card will be considered theft and/or fraud. You further agree that if You lose the prepaid debit card, You will report the loss to Gesture immediately.
3C. You agree that if you fail to complete any Delivery (a “Service Failure”), Gesture reserves the right to recover any costs incurred by Gesture related to your action(s) or omission(s). You further agree that if You fail to return to a Merchant any item that cannot be delivered (a “Return Failure”), Gesture reserves the right to recover any costs incurred by Gesture related to the Return Failure. If You dispute responsibility for a Service Failure or Return Failure, You agree to resolve the dispute pursuant to the “Payment Disputes” provision in Section 5 below.
4. Fees For Services Provided
4A. Unless otherwise notified in writing by Gesture or as otherwise provided herein, You will receive payment per completed leg of Delivery in the amount listed in the payment schedule for the relevant type of delivery and/or relevant market as found in the Fleet Help Center. Gesture reserves the right, at its sole discretion, to change the payment schedules at any time for any reason, and Your continued use of the Gesture Platform shall constitute Your consent to any change. Nothing in this Agreement prevents the Parties from negotiating a different rate of pay, and You are free to accept, reject, or ignore any Delivery Opportunities as a means to earn different rates of pay.
4B. Gesture agrees to transmit payment(s) for all completed leg(s) of Delivery to You via direct deposit payment no later than seven (7) days after You complete the related Delivery, unless otherwise agreed to by the Parties. You are responsible for any applicable processing fees associated with such remittance, and You agree to accept transfer and/or transaction fees, as applicable, for such payments.
4C. Customers can pay You a gratuity in cash or via other payment method(s). Nothing in this Agreement shall prevent You from retaining 100% of any gratuity paid by a Customer. Gesture acknowledges it has no right to interfere with the amount of gratuity given to You by a Customer.
5. Payment Disputes
5A. In the event of a Service Failure or Return Failure, You agree that You may forfeit all or a portion of the payment as described in Section 4 above (depending on the extent to which the Service Failure results from Your action or omission). Any reduction of payment shall be based upon proof provided by the Customer, Merchant, You, and/or any other party with information relevant to the dispute. Gesture shall make the initial determination as to what percentage of fault You bear, and You shall have the right to challenge Gesture’ determination as described in the provisions set forth in Sections 10 and 11, below.
5B. In the event Gesture fails to remit payment in a timely or accurate manner, You shall have the right to seek proper payment by any legal means contemplated by this Agreement, provided, however, You first inform Gesture in writing of the failure and provide Gesture a reasonable opportunity to cure.
6. Reporting Your Income
6A. If You earn the minimum income established by the Internal Revenue Service, Gesture shall report all payments made to You on a calendar year basis by issuing an IRS Form 1099.
6B. You agree that Gesture may fulfill any tax-related obligations, including but not limited to providing 1099 Forms, through any means, including by electronic transmission to the email address associated with Your Gesture account as provided by You. Further, You agree to report all such payments to the appropriate federal, state, and local taxing authorities.
7A. At Your own expense, You shall, during the Term of this Agreement, maintain up-to-date insurance of the types and in amounts equal to or greater than the minimum requirements as required by law in the jurisdiction in which You provide services as contemplated by this Agreement. This includes, but is not limited to, vehicle insurance that is equal to or greater than the minimum vehicle insurance coverage amounts and types required by state or local law, workers’ compensation insurance, and/or occupational accident insurance.
7B. Gesture may offer You the opportunity to participate in certain group insurance plans made available by third-party providers to You
7C. You agree to deliver to Gesture, upon request, up-to-date certificates of insurance as proof of coverage. You agree to make available updated certificates each time You purchase, renew, or alter Your insurance coverage. You also agree to give Gesture at least thirty (30) days’ prior written notice before cancellation of any insurance policy required by this Agreement.
8A. You acknowledge and agree that in the performance of this Agreement You may have direct or indirect access or exposure to Gesture’ confidential information (“Confidential Information”). Confidential Information includes Gesture’ data, provider IDs, user information, Customer information, package information, and the transaction volume, marketing and business plans, business, financial, technical, operational and such other nonpublic information (whether disclosed in writing or verbally) that Gesture designates as being proprietary or confidential or that You should reasonably know to treat as confidential.
8B. You acknowledge and agree that: (a) all Confidential Information shall remain the exclusive property of the Gesture; (b) You shall not use Confidential Information for any purpose except to complete a Delivery; (c) You shall not disclose Confidential Information to any third-party; and (d) You shall not keep Confidential Information and shall return or destroy (with confirmation of destruction) all Confidential Information upon the termination of this Agreement or at Gesture’ request.
8C. Notwithstanding the foregoing, Confidential Information shall not include any information to the extent it: (a) is or becomes part of the public domain through no action or omission by You; (b) was possessed by You prior to the date of this Agreement without an obligation of confidentiality; or (c) is disclosed to You by a third party having no obligation of confidentiality with respect thereto.
8D. If You becomes legally compelled to disclose any Confidential Information, other than pursuant to a confidentiality agreement, You will provide Gesture prompt written notice of such disclosure and will cooperate with Gesture should Gesture seek a protective order or another appropriate remedy. If Gesture waives Your compliance with this obligation or fails to obtain a protective order or other appropriate remedy, You will furnish only that portion of the Confidential Information that is legally required to be disclosed; provided that any Confidential Information so disclosed shall maintain its confidentiality protection for all purposes other than such legally compelled disclosure.
9A. You agree to indemnify, protect, and hold harmless Gesture, including all parent, subsidiary, and/or affiliated companies, as well as its and their past and present successors, assigns, officers, owners, directors, agents, representatives, attorneys, and employees (collectively “Indemnitees”), from: (i) any and all claims, demands, damages, lawsuits, losses, liabilities and causes of action arising directly or indirectly from, as a result of or in connection with the actions of You and/or any Subcontractor under this Agreement, including but not limited to, personal injury to or death of any person (including You and/or any Subcontractor); (ii) any liability arising from Your failure to comply with the terms of this Agreement; (iii) any and all tax liabilities and responsibilities for payment of all federal, state, and/or local taxes, including, but not limited to all payroll taxes, self-employment taxes, workers’ compensation premiums, and any contributions imposed or required under federal, state, and/or local laws, that are owed by You with respect to Your and/or any Subcontractors using the Gesture Platform to complete Deliveries; and (iv) all costs associated with Your business, including, but not limited to, the expense and responsibility for any and all applicable insurance, local, state, and/or federal licenses, permits, taxes, and assessments of any and all regulatory agencies, boards or municipalities.
9B. You agree that Your obligations in this Section 9 shall include the cost of defense, including attorneys’ fees, as well as the payment of any final judgment rendered against or settlement agreed upon by Gesture or any of the Indemnitees
10. Mutual Arbitration Provision
10A. Arbitration of Disputes. The Parties mutually agree to resolve any disputes between them exclusively through final and binding arbitration instead of filing a lawsuit in court.
Gesture and You expressly agree that this Mutual Arbitration Provision is governed exclusively by the Federal Arbitration Act (9 U.S.C. §§ 1-16) ("FAA") and shall apply to any and all claims between the Parties, including but not limited to those arising out of or relating to this Agreement, Your classification as an independent contractor, Your provision of services under this Agreement, the fees received by You for performing Deliveries, the termination of this Agreement, the deactivation of Your Gesture account, and all other aspects of Your relationship with Gesture, past or present, whether arising under federal, state, or local law, including without limitation 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 Your relationship or termination of that relationship with Gesture. The Parties expressly agree that this Agreement shall be governed by the FAA even in the event You and/or Gesture 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 You perform delivery services shall apply.
Only an arbitrator, and not any federal, state, or local court or agency, shall have the exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability, or formation of this Mutual Arbitration Provision, including without limitation any dispute concerning arbitrability. However, as stated in Section 10B.iv below, the preceding clause shall not apply to any dispute relating to or arising out of the Class Action Waiver and Representative Action Waiver, which must proceed in a court of competent jurisdiction and cannot be heard or arbitrated by an arbitrator.
10B. BY AGREEING TO ARBITRATE DISPUTES BETWEEN THEM AS DESCRIBED HEREIN THE PARTIES TO THIS AGREEMENT AGREE THAT ALL SUCH DISPUTES WILL BE RESOLVED THROUGH BINDING ARBITRATION BEFORE AN ARBITRATOR AND NOT BY WAY OF A COURT OR JURY TRIAL.
If either Party wishes to initiate arbitration, the initiating Party must notify the other Party in writing via certified mail, return receipt requested, or hand delivery within the applicable statute of limitations period. This demand for arbitration must include (1) the name and address of the Party seeking arbitration, (2) a statement of the legal and factual basis of the claim, and (3) a description of the remedy sought. Any demand for arbitration by You must be delivered to Gesture Attn: Legal Department, 530 7th Ave #23 NY, NY 10018.
CLASS ACTION WAIVER—PLEASE READ. Gesture and You mutually agree that any and all disputes or claims between the Parties will be resolved in individual arbitration. The Parties further agree that by entering into this Agreement, they waive their right to have any dispute or claim brought, heard or arbitrated as a class and/or collective action, or to participate in any class and/or collective action, and an arbitrator shall not have any authority to hear or arbitrate any class and/or collective action (“Class Action Waiver”).
REPRESENTATIVE ACTION WAIVER—PLEASE READ. Gesture and You mutually agree that any and all disputes or claims between the Parties will be resolved in individual arbitration. The Parties further agree that by entering into this Agreement, they waive their right to have any dispute or claim brought, heard or arbitrated as a representative action, or to participate in any representative action, including but not limited to, claims brought under any state’s Private Attorneys General Act (PAGA), and an arbitrator shall not have any authority to arbitrate a representative action (“Representative Action Waiver”).
Notwithstanding any other clause contained in this Agreement, this Mutual Arbitration Provision, or the American Arbitration Association Commercial Arbitration Rules (“AAA Rules”), any claim that all or part of this Class Action Waiver and/or Representative Action Waiver is unenforceable, unconscionable, void, or voidable shall be determined only by a court of competent jurisdiction and not by an arbitrator. As stated above, all other disputes regarding interpretation, applicability, enforceability, or formation of this Mutual Arbitration Provision shall be determined exclusively by an arbitrator.
You agree and acknowledge that entering into this Mutual Arbitration Provision does not change Your status as an independent contractor in fact and in law. You further agree that when performing services pursuant to the terms of this Agreement, You are not doing so as an employee of Gesture, a Merchant, or a Customer. You further agree that any disputes in this regard shall be determined exclusively by an arbitrator.
Any arbitration shall be governed by the AAA Rules, except as follows: (1) The arbitration shall be heard by one arbitrator selected in accordance with the AAA Rules. The arbitrator shall be an attorney with experience in the law underlying the dispute; (2) Unless applicable law provides otherwise, as determined by the Arbitrator, Gesture and You shall equally share filing fees and other similar and usual administrative costs, as are common to both court and administrative proceedings. Gesture shall pay any costs uniquely associated with arbitration, such as payment of the Arbitrator and room rental; (3) The arbitrator may issue orders (including subpoenas to third-parties) allowing the Parties to conduct discovery sufficient to allow each Party to prepare that Party’s claims and/or defenses, taking into consideration that arbitration is designed to be a speedy and efficient method for resolving disputes; (4) Except as provided in the Class Action Waiver and Representative Action Waiver, the arbitrator may award all remedies to which a Party is entitled under applicable law and which would otherwise be available in a court of law, but shall not be empowered to award any remedies that would not have been available in a court of law for the claims presented in arbitration. The arbitrator shall apply the state or federal substantive law, or both, as is applicable; (5) The arbitrator may hear motions to dismiss and/or motions for summary judgment and will apply the standards of the Federal Rules of Civil Procedure governing such motions; (6) The arbitrator’s decision or award shall be in writing with findings of fact and conclusions of law; (7) Either Gesture or You may apply to a court of competent jurisdiction for temporary or preliminary injunctive relief on the ground that without such relief the arbitration provided in this Section 10 may be rendered ineffectual.
Regardless of any other terms of this Agreement, nothing prevents You from making a report to or filing a claim or charge with the Equal Employment Opportunity Commission, U.S Department of Labor, Securities Exchange Commission, National Labor Relations Board, or Office of Federal Contract Compliance Programs, and nothing in this Agreement or Mutual Arbitration Provision prevents the investigation by a government agency of any report, claim or charge otherwise covered by this Mutual Arbitration Provision. This Mutual Arbitration Provision also does not prevent federal administrative agencies from adjudicating claims and awarding remedies based on the claims addressed in this Section 10, even if the claims would otherwise be covered by this Mutual Arbitration Provision. Nothing in this Mutual Arbitration Provision prevents or excuses a Party from satisfying any conditions precedent and/or exhausting administrative remedies under applicable law or as required under this Agreement before bringing a claim in arbitration. Gesture will not retaliate against You 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.
Right to Opt Out of Arbitration. Arbitration is not a mandatory condition of Your contractual relationship with Gesture, and therefore You may opt out of this Mutual Arbitration Provision. In order to opt out, You must notify Gesture of Your intention to opt out by submitting to Gesture, via USPS Priority Mail or hand delivery to Attn: Legal Department, 530 7th Ave #23 NY,NY 10018, a written notice stating that you are opting out of this Mutual Arbitration Provision. This written notice must be signed by You, and not any attorney, agent, or other representative of yours. In order to be effective, Your opt-out notice must be postmarked or received by Gesture within thirty (30) days of Your acceptance of this Agreement. If You opt out as provided in this subparagraph, Contractor will not be subject to any adverse action as a consequence of that decision and may pursue available legal remedies without regard to this Mutual Arbitration Provision. If You do not opt out within thirty (30) days of Your execution of this Agreement, Your failure to do so shall constitute mutual acceptance of the terms of this Mutual Arbitration Provision by Gesture and You.
You may only opt out on behalf of Yourself. A written notice submitted to Gesture indicating Your intention to opt out may apply, at most, to You.
Your decision to opt out of this Mutual Arbitration Provision will relieve You only of Your obligation to arbitrate the disputes specified in this Mutual Arbitration Provision, and does not relieve You of any obligation to arbitrate disputes not specified in this Mutual Arbitration Provision that might arise under any Gesture Terms of Service to which You may be bound as a customer. Similarly, Your decision to opt out of another arbitration provision contained in any other agreement shall not relieve You of Your obligation to arbitrate disputes pursuant to this Mutual Arbitration Provision.
Right To Consult With An Attorney: You have the right to consult with private counsel of Your choice, at Your own expense, with respect to any aspect of, or any claim that may be subject to this Mutual Arbitration Provision.
In the event any portion of this Mutual Arbitration Provision is deemed unenforceable, the remainder of this Mutual Arbitration Provision will be enforceable. In any case in which (1) the dispute is filed as a class, collective, or representative action and (2) there is a final judicial determination that all or part of the Class Action Waiver and/or Representative Action Waiver is invalid or unenforceable, the class, collective, or representative action to that extent must be litigated in a civil court of competent jurisdiction, but the portion of the Class Action Waiver and Representative Action Waiver that is valid and enforceable shall be enforced in arbitration.
11. Term and Termination of Agreement
11A. This Agreement shall remain in full force and effect for a term of one (1) year from the date it is accepted by You and may not be terminated early without penalty except in the following limited circumstances:
Upon the mutual written consent of the Parties hereto (with electronic communication satisfying this requirement). with the mutually agreed-upon termination date stated in the written notice.
By Gesture, upon thirty (30) days’ written notice to You, if You have not performed a delivery for a period of at least four (4) months (with electronic communication satisfying this requirement), with the date of transmission commencing the thirty (30) day period.
By Gesture, in the event of an anticipated change in control or cessation of its operations in Your market, upon thirty (30) days’ written notice to You (with electronic communication satisfying this requirement), with the date of transmission commencing the thirty (30) day period.
If one Party has materially breached the Agreement, immediately upon written notice to the breaching Party (with electronic communication satisfying this requirement), with such notice specifying the breach relied upon. In the case of a material breach by You, and upon written notice, Gesture may deactivate Your Gesture account.
11B. The following acts and/or occurrences shall constitute a material breach of this Agreement:
Failure by Gesture to remit to You all fees for a completed Delivery within twenty-one (21) days of the completed Delivery.
Failure by You to maintain current insurance coverage in the amounts and types specified herein or as required by law.
Failure by You to complete a Delivery without waiver of the obligation as communicated by Gesture.
Failure by You to maintain all licenses, permits, authorities, registrations and/or other prerequisites to operate that are required by law and/or this Agreement.
Any act by a Party that causes the other party to violate its obligations under any applicable state, federal or local law.
Documented complaint by a Customer, employee of Gesture, employee of a Merchant. and/or third-party that You have engaged in conduct that a reasonable person would find physically threatening, highly offensive or harassing.
Failure by You to reasonably cooperate with Gesture in the investigation of or response to any claim (insurance, civil, or otherwise) arising out of or related to Your and/or Subcontractor’s alleged or actual acts or omissions while using Gesture.
Documented abuse or manipulation of promotions or referral programs offered by Gesture.
Failure by You to provide delivery in a manner consistent with Gesture’ effective operation of the Gesture Platform.
11C. Early termination of this Agreement by Gesture without proper notice (as established in subsection A above) shall result in liquidated damages of $100.00 for each day that notice is not properly provided to You, up to a maximum amount of $500.00. The Parties acknowledge that liquidated damages are appropriate because actual damages are not reasonably ascertainable.
11D. Other than for illegal or destructive acts, in the event You dispute that You materially breached this Agreement, You may challenge Gesture’ decision using the dispute resolution process described in Section 10, above. In all such instances, the Parties will be responsible for their own attorneys’ fees and costs, subject to any remedy to which they may be entitled under applicable law and which would otherwise be available in a court of law, but Gesture shall bear the Arbitrator’s and arbitration fees and costs. Notwithstanding the foregoing, as set forth below, You are not precluded from asserting that applicable law requires Gesture to bear the Arbitrator’s and arbitration fees and costs, even for illegal or destructive acts. In the event there is a dispute in this regard, the Arbitrator must determine the appropriate apportionment of fees at the earliest practicable time following commencement of the arbitration.
11E. If not terminated, the Agreement shall be automatically renewed for successive one-year terms, unless terminated by either party as described in Sections 11A and 11B.
11F. The Parties’ obligations and rights arising under Section 5, 6, 8, 9, 10, 11, 12, and 13 of this Agreement shall survive termination of this Agreement and deactivation of Your Gesture account.
12. Entire Agreement, Transferability, And Waiver
12A. Unless otherwise stated in this Agreement, this Agreement shall constitute the entire agreement and understanding between the Parties with respect to the subject matter of this Agreement and shall not be modified, altered, changed, or amended in any respect, unless in writing and executed by both Parties. This Agreement supersedes any prior contract between the Parties. This Agreement may not be assigned by either Party without written consent of the other, and shall be binding upon the Parties hereto, including their heirs and successors, provided, however, that Gesture may assign its rights and obligations under this Agreement to an affiliate of Gesture or any successor(s) to its business and/or purchaser of all or substantially all of its stock or assets. References in this Agreement to Gesture shall be deemed to include such successor(s).
12B. 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.
13A. 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.
13B. 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.
13C. Savings Clause. If any part of this Agreement is declared unlawful or unenforceable, the remainder of this Agreement shall remain in full force and effect.
13D. Force Majeure. The performance of the obligations of this Agreement on the part of either Party shall be excused by reasons of closing of public highways, changes in operations, strikes or work stoppages, weather conditions that make operations unsafe or impractical, Acts of God, or the temporary or permanent cessation of business by either Party.
13F. Stripe Connected Account Terms of Service. You represent and warrant that You have reviewed, understand, and agree to the Stripe Connected Account Agreement, which is expressly incorporated herein by reference.
By entering into this Agreement, You expressly acknowledge and agree that You read and fully understand the provisions of this Agreement, You have had sufficient time and opportunity to consult with legal and tax advisors before executing this Agreement, You are legally competent to enter into this Agreement, and You agree to be bound by this Agreement.