*(READ THIS AGREEMENT CAREFULLY AS IT IS LEGALLY BINDING, AFFECTS YOUR LEGAL RIGHTS, AND INCLUDES A BINDING ARBITRATION AND CLASS ACTION WAIVER PROVISION. YOU ARE ADVISED TO CONSULT WITH LEGAL COUNSEL OF YOUR CHOICE IN DECIDING WHETHER TO ENTER INTO THIS AGREEMENT.)
This Runner Agreement (the “Agreement”) is entered into by and between Runerra Technologies, LLC, a Delaware limited liability company headquartered in Minneapolis, MN (“Runerra”), and the undersigned individual, an independent shopper and delivery service provider (the “Runner”).
1. Background. Through a web-based and mobile application technology platform (the “Platform”), Runerra provides an online marketplace in which Platform users can arrange peer- to-peer shopping and delivery transactions (each, a “Run Transaction”). To facilitate Run Transactions, the Platform permits (a) an independent shopper and delivery service provider (each a “Runner Provider”) to post that provider’s availability to provide shopping services at merchant sites and to provide related delivery services (each a “Marketplace Offering”) to Platform users desiring to buy such services (each a “Customer”) and (b) a Customer to accept a Provider’s Marketplace Offering.
3. Representations and Warranties. As a condition of being allowed to enter into this Agreement and to use the Platform as a Runner Provider, Runner represents and warrants to the following provisions in this Section 3. Runner understands and agrees that Runerra is relying on Runner’s representations and warranties set forth herein in entering into this Agreement and permitting Runner to use the Platform as a Runner Provider.
3.1. Runner represents and warrants that Runner is at least 18 years old, is authorized to perform work in the United States, and has the legal right, authority, and capacity to enter into and abide by the terms of this Agreement and the Runerra Provider Policies.
3.2. Runner represents and warrants that Runner shall only use the Platform in a lawful manner and for the intended purpose of posting lawful Marketplace Offerings and completing lawful Run Transactions.
3.3. Runner represents and warrants that Runner does and will continue to satisfy all legal requirements related to Runner’s use of the Platform and/or provision of Marketplace Offerings and Run Transactions, including but not limited to all laws related to business registration, licensing, permitting, insurance, taxes, advertising, transportation, and service provision and delivery.
3.4. Runner represents and warrants that Runner lawfully possesses and will continue to lawfully possess all equipment, materials, supplies, and transportation resources necessary to make Marketplace Offerings and to consummate each Run Transaction purchased by a Customer.
3.5. Runner represents and warrants that (a) Runner has never been convicted of any crime involving murder or attempted murder, rape or sexual assault, attempted rape or attempted sexual assault, (b) Runner has not, in the past ten years, been convicted of any crime involving theft or attempted theft, fraud or attempted fraud, violence or a threat of violence; and (c) Runner has not been convicted of any other type of crime that is reasonably likely to interfere with or negatively impact Runner’s ability to safely and lawfully perform Run Transactions.
3.6. Runner represents and warrants that Runner will maintain any legally mandated insurance coverage and any other insurance coverage as is customary for Runner’s industry and services to be provided through the Platform, including but not limited to workers’ compensation insurance, vehicle insurance, and business liability insurance.
3.7. Runner represents and warrants that Runner will immediately notify Runerra in writing should any of Runner’s representations and warranties in this Section 3 cease to be true. Upon receipt of such notification, Runerra reserves the right to suspend or terminate Runner’s use of the Platform, either temporarily until Runerra is satisfied that Runner can again truthfully make all of the representations and warranties set forth in this Section 3 or permanently.
4. Runner’s Use of Platform; Services to Customers.
4.1. In consideration of Runner’s agreements set forth herein and Runner’s agreement to the Runerra Provider Policies, as such Agreement and Policies may be amended by Runerra from time to time, Runerra shall provide Runner access to the Platform for Runner’s use in posting lawful Marketplace Offerings and completing Run Transactions.
4.2. Runner agrees that Runerra may from time to time unilaterally amend this Agreement and the Runerra Provider Policies, and Runner agrees that such amendments shall become effective and binding on Runner upon Runerra posting such amendments on its public website or on any online Runner Provider portal hosted by Runerra. Without limiting the foregoing, Runner agrees that, by continuing to use the Runerra Platform following Runner’s posting of any amendment(s) of this Agreement and/or the Runerra Provider Policies, Runner consents to any and all such amendments without the need for any separate signed consent from Runner.
4.3. Runner understands and agrees that, by offering Runner the use of the Platform, Runerra provides no guaranty that any Customer(s) will accept Marketplace Offerings posted by Runner or complete Run Transactions with Runner. Runner is solely responsible for successfully generating and completing Run Transactions through the Platform.
4.4. Runner understands and agrees that Runerra imposes no minimum or maximum amount of Marketplace Offerings or Run Transactions that Runner might post or complete using the Platform. Runner further understands and agrees that, subject to Runner’s compliance with the law, this Agreement, and the Runerra Provider Policies, as they may be amended from time to time, Runner has the sole discretion and control as to (i) whether and how many Marketplace Offerings to post on the Platform; (ii) the timing, location, pricing and other terms of a Marketplace Offerings posted by Runner; (iii) any negotiations with a Customer over the terms of a Marketplace Offering; and (iv) the means and methods by which Runner completes a Run Transaction for a Customer who has accepted a Marketplace Offering of Runner.
4.5. From time to time, Runerra may notify Runner of a Customer seeking a Marketplace Offering from Runner. Runner may elect to offer such Customer a Marketplace Offering, but has no obligation to do so.
4.6. Runner agrees that, upon a Customer accepting a Marketplace Offering of Runner, Runner shall complete the resulting Run Transaction in accordance with the pricing, shopping list, and delivery terms agreed on between Runner and the Customer.
4.7. Runner agrees to comply with all applicable federal, state, and local laws, rules and regulations in accessing and using the Platform, posting a Marketplace Offering and consummating a Run Transaction. Without limiting the foregoing, Runner agrees to comply with (a) all transportation and vehicle licensing laws; (b) all laws placing age limits on the sale and delivery of alcoholic or tobacco products to Customers; (b) all applicable dram shop laws prohibiting or limiting the sale of alcoholic beverages to an intoxicated individual; (c) all food or beverage safety laws; and (d) all laws prohibiting use of the Platform for any unlawful purpose, such as but not limited to engaging in criminal activity.
4.8. Runner agrees to deliver all food and beverage items ordered by Customer to the Customer in an uncontaminated, tamper-free state and at the temperature or condition intended by the merchant when applicable.
4.9. Runner agrees to post Marketplace Offerings and complete Run Transactions in a professional, lawful, safe and competent manner and in a manner that does not negatively impact the Runerra Platform, brand, and/or reputation.
4.10. Runner agrees that, when using a motor vehicle, motorcycle, scooter, bicycle or other mode of transportation to consummate Run Transactions, Runner will comply with all applicable laws and take all steps necessary to protect Runner’s health and safety and the health and safety of third parties. Runner understands and agrees that, when making Marketplace Offerings and completing Run Transactions, Runner is solely responsible for ensuring Runner’s own health and safety and the health and safety of third parties, including but not limited to any Customer. Runner understands and agrees that Runerra does not undertake to conduct any safety screenings on Customers and that Runerra assumes no responsibility for Runner’s health or safety or any liability to Runner of any kind for any harm of any kind caused to Runner by a Customer or other third party in the course of using the Platform.
4.11. Runner understands and agrees that the Platform may be unavailable at times due to technology issues, routine maintenance, natural disasters, or other reasons. Runner understands and agrees that Runerra may modify and alter the Platform over time and the merchants designated on the Platform without advance notice or Runner and without any requirement to obtain Runner’s consent.
4.12. Runner agrees that Runner is solely responsible to provide, at Runner’s own expense, all equipment, transportation, supplies, personnel, and other materials needed or used in making Marketplace Offerings and consummating Run Transactions. Except as otherwise required by law, Runner assumes all risk of damage or loss to Runner's supplies and equipment. Runner is not required, as a condition of doing business with Runerra or entering into this Agreement, to purchase, lease, or rent any products, equipment, or services from Runerra.
4.13. Runner agrees that Runner has in place and will continue to maintain any legally mandated insurance coverage and/or such insurance coverage as is customary for Runner’s industry and services to be provided through the Platform, including but not limited to workers’ compensation insurance, vehicle insurance, and business liability insurance. Upon Runerra’s request, Runner agrees to promptly provide Runerra proof of such insurance coverage.
5. Customer Payment; Fees; Taxes.
5.1. For each Run Transaction, Runner shall charge the Customer for (a) the actual cost of the goods purchased for the Customer and the actual cost of any associated sales or other taxes due on the purchase of such goods; and (b) a fee of Runner’s choice for Runner’s completion of the Run Transaction (the “Run Fee”).
5.2. In return for Runner’s ability to use the Platform to identify Run Transaction opportunities and complete Run Transactions, Runner agrees that (a) each Customer’s Transacation Price payment to Runner will be processed through the Platform using Stripe Payments or another third party payor service of Runnera’s choice; and (b) that, for each Run Transaction Runerra will retain ten percent (10%) of the Run Fee, plus fifty (50) cents.
5.3. Runner understands and agrees that there may be instances in which a Customer’s payment through the Platform is declined or not made for some reason. Runner agrees that Runerra is not responsible or liable to Runner for any non-payment by a Customer and that all risks of a Customer non-payment shall be the sole and complete responsibility of Runner.
5.4. Runner agrees, upon entering into this Agreement, to provide Runerra a completed Form W-9 for Runner. Runner understands and agrees that Runner will be issued an annual Form 1099 for tax reporting and payment purposes that reflect all payments made by Customers through the Platform to Runner. Runner understands and agrees that Runner is responsible to report to taxing authorities all income earned or otherwise derived through Runner’s use of the Platform and to pay any and all taxes due on such amounts.
5.5. Runner shall own and retain any and all gratuities received from Customers, whether submitted in cash or paid through Runerra’s Platform. If Runner has employees, Runner shall remit gratuities to such employees as may be required by applicable law. Runner is responsible to report to taxing authorities and any and all gratuities earned by Runner and to pay any and all taxes due on such gratuities in accordance with applicable law.
5.6. Each Customer payment transmitted to Runner through the Platform , whether for a Run Fee or otherwise, shall be deemed complete and accurate unless disputed by Runner in a writing to Runerra within thirty (30) days of Runner’s receipt of the payment. If Runner and Runerra are unable to resolve any written payment dispute submitted by Runner, the dispute may be submitted to arbitration in accordance with Section 12 below.
5.7. Upon the termination of this Agreement for any reason, Runerra shall pay Runner any Customer payments for any Run Transactions fully completed, accrued and unpaid through the date of termination. In no event shall Runerra be obligated to pay Runner any additional amounts.
6. Term and Termination. This Agreement shall become effective on the date signed, in hard copy or electronically by Runner, and shall continue until the termination of this Agreement by either party (a) for any reason, upon thirty (30) days advance written notice, (b) immediately upon written notice by either party for a material breach of any provision of the Runerra Provider Agreement and Policies; or (c) immediately upon written notice due to either party’s bankruptcy (the “Term”). Notwithstanding any other language in this Agreement or in the Runerra Provider Policies, as amended from time to time, Runerra may, without prior notice or any liability to Runner, alter, restrict, suspend or terminate Runner’s access to the Platform, either temporarily or permanently, if Runner is suspected to be or found by Runerra to be in material breach of any aspect of this Agreement or the Runerra Provider Policies, as amended from time to time.
7. Relationship of the Parties. Runner agrees that Runner is an independent shopper and delivery provider and not an employee or agent of Runerra. As such, Runner agrees that Runner has no authority to bind Runerra in any matter whatsoever and has no right currently or in the future to payment of any compensation from Runerra or to participate in any of Runerra’s presently existing or future employee benefits plans, programs or policies including but not limited to health, medical, dental, vision, retirement, workers’ compensation, unemployment insurance, short or long-term disability, paid time off, equity, bonus, commission or other plans, policies or programs. Runner further acknowledges that Runerra is not obligated to carry or provide any insurance for Runner or for any claims against Runner by any Customer or third party, including but not limited to workers’ compensation, unemployment insurance, or business liability insurance.
So long as Runner is complying with this Agreement, the Runerra Provider Policies, and legal requirements, Runerra shall not control or direct the details, manner or means by which Runner posts Marketplace Opportunities or completes Run Transactions. Runner shall have the right to provide additional services to any person or entity when not performing Runner’s services to Customers using the Platform.
Runner may hire employees and assistants of Runner’s choice so long as such employees and assistants are pre-approved by Runerra to access and use the Platform and sign an agreement with Runner to abide by the terms of this Agreement and the Runerra Provider Policies, as amended form time to time by Runerra. Runerra does not assume any responsibility for the terms of any arrangements between Runner and any of Runner’s employees or assistants and any such employees and assistants will be employed solely by Runner.
8. Confidential Information. “Confidential Information” means any non-public information regarding Runerra or any of its employees, directors, representatives, suppliers, vendors, shareholders, members, Customers, or other third parties or entities with whom Runerra does business, whether developed by Runner or by others and in whatever form, and includes, but is not limited to, trade secrets, inventions, financial information, personnel policies and key personnel information, and information relating to such matters as existing or contemplated technology, products, services, research and/or development, insurance arrangements, profit margins, fee schedules, pricing, design, processes, formulae, business plans, sales techniques, marketing techniques, training methods, manuals and materials, policies or practices related to business, personnel or other matters, computer databases, computer programs, software and other technology, Customer lists, Customer preferences or requirements, vendor lists, or supply information. Any information disclosed to Runner or to which Runner has access while using the Platform as a Runner Provider that Runner reasonably considers to be Confidential Information, or which Runerra treats as Confidential Information, will be presumed to be Confidential Information.
Runner agrees not to directly or indirectly use or disclose any Confidential Information except as authorized in advance in writing by Runerra. Runner recognizes that the Confidential Information constitutes a valuable asset of Runerra and hereby agrees to act in such a manner as to prevent its disclosure and use by any person unless such use is with the written consent of Runerra.
9. Defense and Indemnity. Runner agrees to defend, indemnify, protect and hold harmless Runerra, including all parent, subsidiary and/or affiliated companies, and their past and present successors, assigns, officers, owners, members, directors, agents, representatives, attorneys, and employees, from and against any and all claims, demands, damages, fees (including attorney’s fees and costs), suits, losses, liabilities and causes of action arising directly or indirectly from, as a result of or in connection with (i) a breach of Runner’s representations and warranties in Section 3 of this Agreement; (ii) a breach by Runner of Runner’s obligations under this Agreement and the Runerra Provider Policies, as amended from time to time by Runerra; (ii) Runner’s unlawful or improper use of the Platform; (iii) Runner’s posting of and/or negotiation of a Marketplace Opportunity (iv) Runner’s performance of shopping and delivery services undertaken to complete a Run Transaction; (v) the actions or omissions of Runner and/or Runner’s employees, assistants or agents; (v) Runner’s failure to report income to taxing authorities or to pay all taxes due on any income received by Runner or Runner’s employees, assistances, or agents; and (vi) any claims that Runerra owes Runner or Runner’s assistants, employees, or agents any wages, benefits, insurance, tax payments, interest, or penalties.
10. Return of Property. At any time upon request by Runerra, Runner shall (a) promptly return (or destroy if requested by Runerra) all of Runerra’s property in the possession or control of Runner, including any of Runerra’s Confidential Information; and (b) certify in writing to Runerra that all such items and materials in the possession or control of Runner have been returned or destroyed.
12. Arbitration and Class Action Waiver.
12.1. To the fullest extent permitted by law and except as otherwise expressly stated herein, Runner and Runerra agree to resolve any and all disputes between or among them involving this Agreement or any other subject matter and arising under any federal, state or local law exclusively through final and binding arbitration before the American Arbitration Association (“AAA”), rather than in court or before any administrative or regulatory body. This arbitration provision (the “Arbitration Provision”) shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16).
12.2. If either Party wishes to initiate arbitration, that Party must notify the other Party in writing by certified mail, return receipt requested, or hand delivery within the applicable statute of limitations period. The demand for arbitration must include (i) the name and address of the person or entity seeking arbitration, (ii) a statement of the legal and factual basis of the claim, and (iii) a description of the remedy sought. Any demand for arbitration directed at Runerra must be delivered to its headquarters address listed on its public website. Any demand for arbitration by Runerra must be delivered to Runner’s last known business address.
12.3. THE PARTIES MUTUALLY AGREE, THAT IN ENTERING INTO THIS ARBITRATION PROVISION, THEY HEREBY WAIVE THEIR RIGHT TO HAVE ANY DISPUTE OR CLAIM BETWEEN THEM BROUGHT, HEARD OR ADJUDICATED IN COURT OR IN ARBIRATION AS A CLASS ACTION, COLLECTIVE ACTION, AND/OR REPRESENTATIVE ACTION, AND THE AAA ARBITRATOR WILL NOT HAVE ANY AUTHORITY TO HEAR OR ARBITRATE ANY CLASS, COLLECTIVE OR REPRESENTATIVE ACTION (“CLASS ACTION WAIVER”). NOTWITHSTANDING ANY OTHER CLAUSE CONTAINED IN THIS AGREEMENT OR ANY AAA RULES, ANY CLAIM THAT ALL OR PART OF THIS CLASS ACTION WAIVER IS UNENFORCEABLE, UNCONSCIONABLE, VOID OR VOIDABLE MAY BE DETERMINED ONLY BY A COURT OF COMPETENT JURISDICTION AND NOT BY AN ARBITRATOR. IN ANY CASE, IN WHICH (I) THE DISPUTE IS FILED AS A CLASS, COLLECTIVE, AND/OR REPRESENTATIVE ACTION AND (II) THERE IS A FINAL JUDICIAL DETERMINATION THAT ALL OR PART OF THIS CLASS ACTION WAIVER IS UNENFORCEABLE, THE CLASS, COLLECTIVE, AND/OR REPRESENTATIVE ACTION MUST BE LITIGATED IN A CIVIL COURT OF COMPETENT JURISDICTION, BUT ONLY TO THE EXTENT THE CLASS ACTION WAIVER IS DEEMED UNENFORCEABLE, AND THE PORTION OF THE CLASS ACTION WAIVER THAT IS ENFORCEABLE WILL BE ENFORCED IN ARBITRATION.
12.4. Neither this Arbitration Provision nor the Class Action Waiver in Section 12.3 above shall apply to a representative action brought on behalf of others under the Private Attorneys General Act of 2004 (“PAGA”), California Labor Code § 2698 et seq.; any representative action brought under PAGA on behalf of others must be litigated in a court of competent jurisdiction.
12.5. Any arbitration commenced under this Section 12 shall be conducted pursuant to the AAA Commercial Arbitration Rules (“AAA Rules”), which may be found at www.adr.org or obtained by request from Runerra, except that:
12.5.1. The arbitration will be heard by one arbitrator selected in accordance with the AAA Rules. The arbitrator will be an attorney or retired judge with experience in the law underlying the dispute.
12.5.2. If the Parties cannot otherwise agree on a location for the arbitration, the arbitration will take place in the city in which the Runner last resided while using the Platform as a Runner Provider.
12.5.3. Runner’s responsibility to pay any AAA filing, administrative and arbitrator fees will be as set forth in the AAA Rules, except that, if Runner’s claim, or claims, set forth in a Demand for Arbitration does not exceed $75,000 in alleged damages, Runerra will pay all such fees unless the Arbitrator finds that (i) the substance of Runner’s claim or the relief sought in Runner’s Demand for Arbitration was frivolous or (ii) the arbitration proceeding was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
12.5.4. 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.
12.5.5. Except as provided in the class action waiver in Section 12.3 above, the arbitrator may award all remedies to which a party to the arbitration is entitled under applicable law and which would otherwise be available in a court of law, but will 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 will apply the state or federal substantive law, or both, as applicable.
12.5.6. The arbitrator may hear motions to dismiss and/or motions for summary judgment and will apply the standards of the Federal Rules of Civil Procedures governing such motions.
12.5.7. The arbitrator’s decision or award will be in writing with findings of fact and conclusions of law.
12.6. Notwithstanding any other language in this Arbitration Provision, the Parties may apply to a court of competent jurisdiction for temporary or preliminary injunctive relief if necessary to preserve the status quo and prevent the possibility of irreversible or irreparable harm that cannot be adequately remedied by money damages pending final resolution of arbitration proceedings.
12.7. Except with respect to the enforceability, revocability or validity of the class action waiver set forth in Section 12.3 above, only an arbitrator with the AAA, 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 Arbitration Provision. However, notwithstanding the preceding sentence, disputes relating to the interpretation or application of the Class Action Waiver below, including its enforceability, revocability or validity, may be decided only by a court of competent jurisdiction and not an arbitrator.
12.8. Regardless of any other terms of this Agreement, nothing prevents Runner from making a report to or filing a claim or charge with any government agency or cooperating in any investigation conducted by any such agency.
12.9. Right to Opt Out. Runner has the right to opt out of this Arbitration Provision by sending an email notice to [email protected] stating such intention to opt out. Runner may also opt out by sending a written notice to Runerra at 12701 Whitewater Drive, Suite # 120, Minnetonka, MN, 55343, or such other address as may be communicated by Runerra. In order to be effective, such opt out notice must be provided within 30 days of Runner’s acceptance of this Agreement. If Runner timely opts out as provided in this Section 12.9, it will not be subject to any adverse consequences as a result of that decision and may pursue available legal remedies without regard to this Arbitration Provision. Should Runner not opt out of this Arbitration Provision within 30 days of Runner’s acceptance of this Agreement, such acceptance of this Agreement will constitute mutual acceptance of the terms of this Arbitration Provision by Runerra and Runner.
12.10. Runner acknowledges that Runner has been given the opportunity to consult with private counsel of its choice with respect to whether to agree to, any aspect of and any claim that may be subject to this Arbitration Provision. Except as described in subsection (b) above, in the event any portion of this Arbitration Provision is deemed unenforceable, the remainder of this Arbitration Provision will be enforceable.
13.1. This Agreement and the Runerra Provider Policies, as they may be amended from time to time by Runerra, embody the entire agreement and understanding among the parties relative to subject matter hereof and supersede all prior agreements, understandings, or past practices, whether written or oral, relating to such subject matter.
13.2. Runner’s obligations set forth herein survive the termination of this Agreement or Runner’s status as Platform User or Runner Provider, regardless of the reason for such termination.
13.3. Runner shall not assign any right or obligation hereunder in whole or in part, without the prior written consent of Runerra, and any attempt to do so shall be void. The rights and obligations of Runerra under this Agreement may, in the discretion of Runerra, be transferred to Runerra’s successor and assigns.
13.4. Except as otherwise provided in Section 12, all notices, requests and other communications hereunder shall be given in writing and deemed to have been duly given or served if personally delivered, sent by a confirmed receipt facsimile, or sent by first class, certified mail, return receipt requested, postage prepaid, to the party at the address as provided below, or to such other address as such party may hereafter designate by written notice to the other party:
• If to Runerra, to the address of its then headquarters.
• If to Runner, to the address last shown in the records of Runerra.
13.5. No waiver of any provision of this Agreement or the Runerra Provider Policies, as amended from time to time by Runerra, shall be binding unless set forth in a writing signed by the party affecting the waiver. Any waiver shall be limited to the circumstance or event specifically referenced in the written waiver document.
13.6. If any provision of this Agreement is found to be unenforceable or unlawful, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law, and the remaining provisions of this Agreement will continue in full force and effect.
13.7. The section headings contained in this Agreement are for reference purposes only and shall not in any way affect the meaning or interpretation of this Agreement.