Terms And Conditions

 

1.  Legal Notice

 

Thank you for your interest in EpiFruit.  DLVR, LLC (“DLVR,” together with EpiFruit, “We,” “Us,” “Our”) owns and operates the EpiFruit mobile application (“EpiFruit” or the “App”).  These terms and conditions (the “Agreement”) stated below are a legal agreement between You (“You,” “Your”) and EpiFruit.  The following also identifies what You can expect from Us, and what We will expect from You.  

 

Further, the provisions that follow also affect Your legal rights.  Therefore, please read them carefully before You use EpiFruit.  Your use of EpiFruit constitutes Your acceptance of the terms of this Agreement.  If You do not agree, please do not use the App.

 

Important: Please review the arbitration agreement set forth below carefully, as it will require You to resolve disputes with EpiFruit on an individual basis through final and binding arbitration.  By using EpiFruit and entering into this Agreement thereby, You expressly acknowledge that You have read and fully understand all of the terms of this Agreement and have taken the time to fully consider such terms.

 

2.  What We Do

 

EpiFruit connects sellers of goods, food, beverages, and other items (“Retailers”) with independent contractor delivery persons (“EpiFruit Partners”) to fulfill local on-demand delivery requests through EpiFruit’s proprietary web-based technologies.  Independent contractor EpiFruit Partners can access the App to receive notification of, and bid on local delivery opportunities.  EpiFruit is not a retail store, restaurant, food service, manufacturer of goods or merchandise, car or delivery service, or a food preparation entity.  EpiFruit Partners are free to determine their amount of use of EpiFruit and are not required to be active on the App at any time. EpiFruit Partner’s will also determine the pricing for any particular delivery opportunity and may choose to accept any Retailer bid at their sole discretion.

 

EPIFRUIT DOES NOT PROVIDE DELIVERY SERVICES.  RETAILERS LIST THEIR DELIVERY OPPORTUNITIES ON EPIFRUIT. EPIFRUIT THEN AGGREGATES THIS RETAILER INFORMATION AND ALLOWS INDEPENDENT CONTRACTORS TO PRIVATELY BID FOR SUCH DELIVERY OPPORTUNITES. RETAILERS ARE THEN FREE TO OFFER ANY EPIRFRUIT PARTNER A DELIVERY OPPORTUNITY BASED ON A NUMBER OF FACTORS, INCLUDING AN EPIRFRUIT PARTNER’S PRICING, RATINGS, AND TIMES OF AVAILABILITY ON EPIFRUIT. UNLESS OTHERWISE WAIVED BY EPIFRUIT, RETAILERS WILL PAY A RETAILER TRANSACTION FEE FOR EACH DELIVERY. EPIFRUIT DOES NOT AND DOES NOT INTEND TO PROVIDE COURIER SERVICES OR TO ACT IN ANY WAY AS A COURIER ITSELF, AND HAS NO RESPONSIBILITY OR LIABILITY FOR ANY EPIRFRUIT PARTNER OR FOR ANY RETAILER MERCHENDISE OR OTHER PROPERTY.

 

3.  Using EpiFruit

 

This Agreement governs the relationship between EpiFruit and all EpiFruit Partners, Retailers, and other users of the App. For the avoidance of doubt, this Agreement is not intended to govern the relationship between EpiFruit Partners and Retailers.  Each EpiFruit Partner using the App must go through an EpiFruit background check and on-boarding process.  We will deactivate your Account upon a discovery that You provided EpiFruit with inaccurate, outdated, or fraudulent information/documentation, or that You allowed another person to use Your Account.

 

If You are a minor in the jurisdiction in which You reside (generally under the age of 18), You must have the permission of, and be directly supervised by, Your parent or legal guardian to use the App.  Your parent or legal guardian must read and agree to this Agreement prior to Your use of the App.

 

Use of the App requires that You register and/or create an account (“Account”).  To register and create an Account, You must create a username and password and provide certain personal information.  In consideration of the use of the App’s services, You agree to: (a) provide true, accurate, current, and complete information about Yourself as prompted by the registration form, and (b) maintain and promptly update the personal information that You provide to keep it true, accurate, current, and complete.  If You provide any information that is untrue, inaccurate, out of date, or incomplete, or EpiFruit has reasonable grounds to suspect that such information is untrue, inaccurate, out of date, or incomplete, EpiFruit has the right to block, restrict, suspend, or terminate Your current or future use of the App (or any portion thereof).

 

By creating an Account on the App, You represent and warrant: (a) that You are at least 16 years old; (b) that You have not previously been suspended or removed from the App; (c) that you have read and agree to the terms of this Agreement; (d) that Your registration and Your use of the App is in compliance with any and all applicable laws and regulations, and all other EpiFruit requirements.

 

If You are using the App on behalf of an entity, organization, or company, You represent and warrant: (a) that You have the authority to bind that organization to this Agreement; (b) that You agree to be bound by these terms on behalf of that entity, organization, or company; and (c) that the entity, organization, or company is in good standing in all of the jurisdictions in which it is operating.

 

If You are a Retailer, You agree to pay all transaction fees related to the delivery of Your goods and items through the App (the “Retailer Transaction Fee”).  Retailer’s further warrant that You are solvent and have not filed an application for bankruptcy within the last 6 months in any jurisdiction.

 

You are responsible for maintaining the confidentiality and security of Your Account and password and are fully responsible for all activities or any other actions that occur under or are taken in connection with Your password or Account.  You agree to immediately notify EpiFruit of any known or suspected unauthorized use(s) of Your password or Account, or any known or suspected breach of security, including loss, theft, or unauthorized use or disclosure of Your password or credit card information.  Neither EpiFruit nor DLVR will be liable for any injury, loss, or damage of any kind arising from or relating to any illegal or negligent acts or omissions (including inadvertent or mistaken use) by You or any third party using Your Account and/or password.

 

4.  Grant Of License

 

With the exception of User Content (defined below), the App and everything on it, including text, photos, videos, intellectual property, code, graphics, and software (collectively, the “Materials”) are owned by or licensed to EpiFruit.  All enhancements or works derived from the Materials belong to EpiFruit and EpiFruit retains all rights to such enhanced or derivative Materials. The App and all Materials on the App are protected by copyright, trademark, trade dress, domain name, patent, trade secret, international treaties, and/or other proprietary rights and laws of the United States and other countries.  Except as otherwise indicated on the App and except for the trademarks, service marks, logos, and trade names of other companies that are displayed on the App, all trademarks, service marks, logos, trade dress, and trade names (including “EpiFruit,” “Epi Fruit,” “EF” and “DLVR,”) are proprietary to EpiFruit and DLVR.  Please be advised that EpiFruit and DLVR shall enforce their intellectual property rights to the fullest extent of the law.

 

We grant You a limited, non-exclusive, non-transferable and revocable license to access and use the App and/or the Materials for Your use, solely as expressly permitted by this Agreement and subject to all the terms and conditions of this Agreement, all applicable intellectual property laws, and any Additional Terms (as defined below) contained on the App.  Any other use of the App and/or the Materials is strictly prohibited.  We may revoke this license at any time and for any reason, including discovery of Your submission of inaccurate, outdated, or fraudulent information (including insurance coverage information, as applicable) during the on-boarding or background check process, or at any time thereafter.  You have an affirmative duty to update, and correct as needed, all information submitted and all other information related to Your Account and the grant of this license.  

 

EPIFRUIT RESERVES THE RIGHT TO REVOKE THE LICENSE THAT WE GRANT TO ANY USER TO USE THE APP AT ANY TIME. AS SUCH, EPIFRUIT MAY TERMINATE OR SUSPEND YOUR ACCOUNT WITHOUT CAUSE. YOU AGREE TO IMMEDIATELY TERMINATE YOUR USE OF THE APP UPON THE REVOCATION OF THE LICENSE GRANTED UNDER THIS AGREEMENT.

 

No Materials may be copied, republished, uploaded, posted, transmitted, enhanced, distributed in any way, and/or modified without Our express written permission.  Nothing contained on the App should be interpreted as granting to You any license or right to use any of the Materials and/or third party proprietary content on the App without the express written permission of EpiFruit or the appropriate third party owner, as applicable.  Upon the termination of Your license, You agree that EpiFruit will not be obligated to deliver any information to You about Your Account, Your use of the App, or about EpiFruit’s findings and final determination.

 

5.  Permitted Content And Conduct

 

By accessing the App, You agree:

 

  • to comply with all applicable laws regarding online conduct and submission of acceptable User Content;

  • to regularly read any updates to this Agreement or to any of the other documents referred to herein;

  • not to allow another person or entity to access Your Account or to make deliveries under Your Account;

  • not to tamper with the App in any manner that causes any inaccuracy or that results in fraud (including creating or completing fraudulent deliveries);

  • not to submit or post a false photograph, or other false Account information;

  • not to post a false delivery opportunity or a delivery of an item You do not have the right to sell or ship;

  • to update any information submitted to EpiFruit so as to ensure its accuracy;

  • not to accept a delivery without the intention to complete such delivery;

  • not to use the App or the services or submit content to the App if You are under the age of 16;

  • not to use the App to deliver alcohol with an EpiFruit Partner known to You to be under the age of 21 (all Retailers that deliver alcoholic beverages must put in place a policy reasonably designed to determine an EpiFruit Partner’s current age that is independent of the App.  EpiFruit may request a copy of such policy from time to time.  Failure to fully comply with this provision may result in the suspension of Your Account.);

  • not to use the App to deliver tobacco with an EpiFruit Partner known to You to be under the age of 18 (all Retailers that deliver tobacco must put in place a policy reasonably designed to determine an EpiFruit Partner’s current age that is independent of the App.  EpiFruit may request a copy of such policy from time to time.  Failure to fully comply with this provision may result in the suspension of Your Account.);

  • not to use the App to deliver alcohol to a recipient known to You to be under the age of 21 (all Retailers that deliver alcoholic beverages must put in place a policy reasonably designed to determine the current age of the recipient of the alcohol that is independent of the App.  EpiFruit may request a copy of such policy from time to time.  Failure to fully comply with this provision may result in the suspension of Your Account.);

  • not to use the App to deliver tobacco to a recipient known to You to be under the age of 18 (all Retailers that deliver tobacco must put in place a policy reasonably designed to determine the current age of the recipient of the tobacco that is independent of the App.  EpiFruit may request a copy of such policy from time to time.  Failure to fully comply with this provision may result in the suspension of Your Account.);

  • not to attempt, through any means, to gain unauthorized access to any part of the App and/or any service, other Account, computer system, and/or network connected to any EpiFruit server;

  • not to attempt to impersonate another user or person;

  • not to advertise, or solicit, any user or third party to buy or sell any products or services, unless authorized by EpiFruit;

  • to pay all Retailer Transaction Fees;

  • not to deep-link to the App and/or access the App manually and/or with any robot, worm, spider, Web crawler, extraction software, automated process, and/or device to scrape, copy, and/or monitor any portion of the App and/or any Materials and/or other content on the App, unless EpiFruit or DLVR has given You specific permission to do so in writing;

  • not to conduct any kind of systematic retrieval of data or other content from the App;

  • not to create or compile, directly or indirectly, any collection, compilation, database or directory from the App content;

  • not to use the App in any manner that could damage, disable, overburden and/or impair any EpiFruit server, or the network(s) connected to any EpiFruit server, and/or interfere with any other party’s use and enjoyment of the App;

  • not to transmit any chain letters or junk email;

  • not to use any information obtained from the App or EpiFruit’s services in order to contact, advertise to, solicit, or sell to any EpiFruit Partner or Retailer;

  • not to sell or transfer Your profile;

  • to ensure that all EpiFruit Partner identifying information or documentation made available to you in connection with a delivery remains confidential and secure;

  • not to use the App to engage in commercial activities apart from sanctioned use of EpiFruit services;

  • not to use the App as part of an effort to compete with, or interfere with the business of DLVR, EpiFruit or the App;

  • not to copy any software or content, including, but not limited to Retailer menu content, for republication in any format or media;

  • to be responsible for any and all Retailer chargeback amounts related to any customer transaction that resulted in a delivery conducted on the App;

  • not to license, sell and/or otherwise provide access to and/or use of the App to any third party, including without limitation to build a competitive product and/or service;

  • not to display an unauthorized advertisement, or accept payment or anything of value from a third person in exchange for You performing any commercial activity on or through the App or EpiFruit’s services on behalf of that person, such as posting blogs or bulletins with a commercial purpose;

  • not to delete the copyright or other proprietary rights notice from any User Content or any portion of the App or EpiFruit’s services;

  • not to upload or transmit viruses or other harmful, disruptive, or destructive files;

  • not to disrupt, interfere with, or otherwise harm or violate the security of the App, or any services, system resources, Accounts, passwords, servers or networks connected to or accessible through the App or affiliated or linked sites (including those of Our Retailers);

  • not to use the App for any illegal purposes, or for the transport of stolen goods, weapons, explosives, or animals not in a cage or crate; and

  • to only make a bid for a delivery opportunity in good faith with the intention of completing the delivery, and agree to be compensated for only the amount described in such bid submitted by You.

 

You agree that the consequences of commercial use or re-publication of User Content or Materials from the App or other violations of the foregoing proscriptions may be so serious and incalculable that monetary compensation may not be a sufficient or appropriate remedy and that EpiFruit will be entitled to temporary and permanent injunctive relief to prohibit such use or activity, without the need to prove damages.

 

6.  Covenants Not To Compete Or Solicit

 

EACH RETAILER AGREES NOT TO ENGAGE EPIRFRUIT PARTNERS OUTSIDE OF THE APP, FOR DELIVERIES THAT MAY BE PERFORMED ON THE APP, WITH THE INTENT TO UNDERMINE EPIFRUIT’S BUSINESS.

 

EACH EPIRFRUIT PARTNER AGREES NOT TO ENGAGE RETAILERS OUTSIDE OF THE APP, FOR DELIVERIES THAT MAY BE PERFORMED ON THE APP, WITH THE INTENT TO UNDERMINE EPIFRUIT’S BUSINESS.

 

BREACH OF THE FOREGOING COVENANTS WILL RESULT IN THE TERMINATION OF YOUR ACCOUNT, AND MAY FURTHER SUBJECT YOU TO ANY OTHER LEGAL REMEDY AVAILABLE TO EPIFRUIT.

 

7.  Content You Provide

 

You represent and warrant that You are the owner of and/or otherwise have the right to provide all information, lists, menus, photos, images, comments, reviews, ratings, and/or other materials and/or content that You submit, post, and/or otherwise transmit to and through the App (“User Content”).

 

You grant EpiFruit, DLVR, and their affiliates an irrevocable, transferable, paid up, royalty-free, perpetual, non-exclusive, worldwide, sub-licensable license to use, copy, display, publish, modify, remove, publicly perform and display, translate, create derivative works from, distribute, and/or otherwise use User Content in connection with EpiFruit’s business and in all forms of media now known or hereafter invented (collectively, the “Uses”), without notification to and/or approval by You.  You further grant EpiFruit, DLVR, and their affiliates a license to use Your username and/or other user profile information to attribute User Content to You in connection with the Uses, if We choose to do so, again without notification to and/or approval by You.  Further, if You provide any suggestions, input, or other feedback relating to the App or the services We provide, EpiFruit, DLVR, and their affiliates shall have the right to freely and fully exercise and exploit such content in connection with its business, without notice to, approval by, or compensation to You.

 

USER CONTENT TRANSMITTED TO CERTAIN PARTS OF THE APP MAY BE VIEWED IN PUBLIC AREAS ON OUR APP, AND AS SUCH WILL BE PUBLICLY VISIBLE AND ACCESSIBLE.  EPIFRUIT, DLVR, AND THEIR OFFICERS, DIRECTORS, EMPLOYEES, PARENTS, SUBSIDIARIES, AFFILIATES, SUCCESSORS, ASSIGNS, LICENSORS, LICENSEES, DESIGNEES, BUSINESS PARTNERS, CONTRACTORS, AGENTS, AND REPRESENTATIVES (COLLECTIVELY, THE “RELEASED PARTIES”) WILL NOT BE RESPONSIBLE FOR, AND YOU HEREBY EXPRESSLY RELEASE AND FULLY INDEMNIFY THE RELEASED PARTIES FROM, ANY AND ALL CLAIMS BY AND LIABILITY TO ANY AND ALL THIRD PARTIES WITH RESPECT TO USER CONTENT POSTED BY YOUR ACCOUNT.

 

8.  Conduct Within Interactive Areas

 

By transmitting User Content, You agree to follow the standards of conduct below, and any additional standards that may be stated on the App or in other sections of this Agreement.  We do Our best to encourage civility and discourage disruptive communication on the App.  We also discourage communications that incite others to violate Our standards.  We expect Your cooperation in upholding Our standards.  You are responsible for all of Your User Content and all activity under Your Account shall be attributed to You.  As such, You agree not to submit or upload any User Content that:

  • is unlawful, harmful to adults or minors, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, profane, lewd, pornographic, offensive, invasive of another’s privacy, hateful, and/or racially, ethnically, and/or otherwise objectionable;

  • has a political or religious purpose;

  • is false, misleading, and/or not written in good faith;

  • infringes any patent, trademark, trade secret, copyright, right of privacy and/or publicity, and/or other proprietary rights of any person and/or entity;

  • is illegal and/or promotes illegal activity;

  • contains unauthorized advertising and/or solicits users to a business other than those on the App; or

  • is intended to interrupt, destroy, or limit the functionality or integrity of any computer software, hardware or Materials on the App.

 

For Your security, EpiFruit or DLVR (acting on their own or through a reputable third party servicer) may monitor any and all use of the App; however, We are under no obligation to do so, and You shall not be entitled to request the results or records of such monitoring.  We may manage the App in a manner intended to protect and defend Our property, Materials, and rights and to facilitate the proper functioning of the App.  If any User Content or conduct on Our App: (a) violates Our standards, or any other terms and conditions of this Agreement; (b) interferes with other users’ enjoyment of the Materials or Our App; or (c) that We believe, in Our sole discretion and judgment, to be inappropriate, offensive or abusive; We reserve the right to change, delete, or remove, in part or in full, any such User Content or Materials; and We further reserve the right to terminate or suspend access to the App.  DLVR and EpiFruit will cooperate with local, state, and/or federal authorities to the extent required by applicable law or by a final decree or order from a court.

 

9.  EpiFruit’s Fulfillment Policy

 

EpiFruit makes available to EpiFruit Partners its helpful Delivery Policy (the “DP”), which contains recommendations for a successful delivery and other best practices for EpiFruit Partners.  In addition, the DP may contain certain terms related to Your rights in relation to Your use of the App.  Each EpiFruit Partner agrees to periodically review the DP.  The DP is made publically available, and is incorporated into this Agreement by reference.

 

NOTHING IN THIS AGREEMENT OR THE DP IS INTENDED TO (1) GOVERN THE RELATIONSHIP BETWEEN ANY RETAILER AND ANY EPIRFRUIT PARTNER (INCLUDING ROUTES, RATES, BIDS, AND TIPPING) OR (2) CREATE A STANDARD OF CARE, PROMISE OR EXPECTATION OF CONDUCT, OR COURSE OF PERFORMANCE BETWEEN EPIRFRUIT PARTNER AND RETAILERS.  EACH RETAILER AND EPIRFRUIT PARTNER AGREES TO RELEASE EPIFRUIT FROM ANY OBLIGATION OR DUTY RELATED TO DELIVERY INSTRUCTIONS OR CARE OF PROPERTY.  EACH RETAILER SHALL BE RESPONSIBLE FOR PROVIDING ANY ADDITIONAL FULFILLMENT INSTRUCTIONS AND SHALL REMAIN FULLY RESPONSIBLE AND LIABLE FOR THE PROPERTY SENT FOR DELIVERY BY A EPIRFRUIT PARTNER.

 

10.  Tips

 

EpiFruit Partners and Retailers are not hired by, and are not employees of, EpiFruit or DLVR. Therefore, You acknowledge and agree that neither EpiFruit nor DLVR is responsible for establishing policies regarding EpiFruit Partner tipping.  EpiFruit will not collect money directly from customers and will not handle customer tips.  You acknowledge and agree that EpiFruit and DLVR are not responsible for the tipping practices of any Retailer.  Each EpiFruit Partner agrees to hold EpiFruit and DLVR harmless for any claims directly or indirectly in connection with tips or the withholding of tips.  Each Retailer agrees to indemnify EpiFruit and DLVR from all claims and actions involving, directly or indirectly, tipping or other customer payments and gratuity owed to EpiFruit Partners for completed deliveries.

 

11.  EpiFruit Partner Cancellation

 

Nothing in this Agreement requires EpiFruit Partners to perform any particular volume of deliveries or to use the App for any minimum period of time or at any time.  However, when You cancel a delivery, it negatively affects the experience for both Retailers and delivery recipients.  Cancellations create a poor customer experience, and increases inefficiencies across the App.  These inefficiencies may result in increased costs and other harm to EpiFruit and to its various users. You acknowledge that minimizing cancellations is critical for the reliability of EpiFruit and agree to only cancel deliveries in good faith.

 

12.  Disclaimer

 

THE MATERIALS AND ALL OTHER CONTENT ON THE APP ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED.  TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, THE RELEASED PARTIES DISCLAIM, WITH RESPECT TO THE MATERIALS AND ALL OTHER CONTENT ON THE APP, ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.  EPIFRUIT AND ITS AFFILIATES DO NOT REPRESENT OR WARRANT THAT THE APP, THE MATERIALS, AND/OR THE OTHER CONTENT WILL BE SECURE, UNINTERRUPTED, AND/OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, AND/OR THAT THE APP, THE MATERIALS, AND/OR OTHER CONTENT ARE FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS.  EPIFRUIT AND ITS AFFILIATES DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE APP, THE MATERIALS, AND/OR ANY OTHER CONTENT IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, TIMELINESS, COMPLETENESS, CURRENTNESS, OR OTHERWISE, INCLUDING WITHOUT LIMITATION, THE QUALITY AND/OR TIMING OF A DELIVERY ORCHESTRATED THROUGH THE APP AND/OR THE FOOD OR OTHER PRODUCTS DELIVERED.  YOU (AND NOT EPIFRUIT) ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION RELATING TO YOUR USE OF THE APP, THE MATERIALS, AND/OR OTHER CONTENT.  DEPENDING ON YOUR JURISDICTION, APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT FULLY APPLY TO YOU.

 

13.  Limitation Of Liability

 

IN NO EVENT SHALL EPIFRUIT OR ITS AFFILIATES BE LIABLE TO YOU FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OR DAMAGES WHATSOEVER (EVEN IF EPIFRUIT HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), IN A WARRANTY, CONTRACT, OR NEGLIGENCE ACTION THAT IN ANY MANNER ARISES OUT OF OR IN CONNECTION WITH THE USE, INABILITY TO USE, PERFORMANCE OF, OR SERVICES PROVIDED ON OR THROUGH THE APP.  WE ASSUME NO RESPONSIBILITY AND SHALL NOT BE LIABLE FOR ANY DAMAGES TO, OR VIRUSES THAT MAY INFECT YOUR MOBILE DEVICE OR OTHER PROPERTY ON ACCOUNT OF YOUR ACCESS TO, USE OF, BROWSING OF, OR DOWNLOADING OF ANY MATERIAL FROM THE APP.  

 

REAILERS AGREE TO SEEK REIMBURSEMENT FOR MERCHANDISE AND OTHER RETAILER PROPERTY THAT IS DAMAGED, STOLEN OR LOST WHILE IN THE CUSTODY OF AN EPIFRUIT PARTNER SOLELY FROM THE EPIFRUIT PARTNER HIRED FOR SUCH DELIVERY. EACH RETAILER WILL BE SOLELY LIABLE, AND WILL HOLD EPIFRUIT HARMLESS, FOR ANY MISUSE OF ANY EPIFRUIT PARTNER’S INFORMATION OR DOCUMENTATION BY SUCH RETAILER, ITS EMPLOYEES, OR ITS AGENTS.  ALL RETAILERS AGREE TO USE REASONABLE EFFROTS TO SECURE, PROECT OR DESTORY SUCH INFORMATION OR DOCUMENTATION APPROPIATELY AS APPLICABLE.

 

EPIFUIT PARTNERS SHOULD CARRY INSURANCE IN ORDER TO COVER THEFT AND DAMAGE TO RETAILER MERCHANDISE. IN THE EVENT AN EPIFRUIT PARTNER LOSES, STEALS, OR DAMAGES RETAILER PROPERTY DURING THE COURSE OF A DELIVERY, THE EPIFRUIT PARTNER ACKNOWLEDGES THAT EPIFRUIT MAY DEBIT THE EPIFRUIT PARTNER’S ACCOUNT FOR THE VALUE OF THE LOST, STOLEN, OR DAMAGED PROPERTY. NO SUCH DEBITS WILL BE MADE UNTIL THE EPIFRUIT PARTNER IS GIVEN PRIOR NOTICE. IN ADDITION, EPIFRUIT RESERVES THE RIGHT TO ADJUST PREVIOUS PAYMENTS MADE TO ANY EPIFRUIT PARTNER IN THE EVENT OF FRAUD, DAMAGE OR THEFT BY AN EPIFRUIT PARTNER, OR TO CORRECT ANY UNAUTHORIZED OR INCORRECT PAYMENTS. EXCEPT IN THE CASE OF THEFT, MISREPRESENTATION, OR DAMAGE TO RETAILER MERCHANDISE, ANY SUCH CORRECTION TO ACCOUNTS WILL BE MADE NO LATER THAN SIX MONTHS AFTER THE INITIAL PAYMENT TO THE EPIFRUIT PARTNER.

 

EPIFRUIT SHALL NOT BE RESPONSIBLE FOR ANY CHARGEBACKS OR CHARGEBACK PENALTIES ASSESSED DUE TO CUSTOMER CANCELLATION OF ORDERS THAT RESULTED IN A COMPLETED DELIVERY ORIGINATING ON THE APP. EACH RETAILER AGREES THAT ALL FEES DUE TO EPIRUIT AND EPIFRUIT PARTNERS ARISING FROM SUCH DELIVERIES SHALL NOT BE REDUCED OR DELAYED AS A RESULT OF ANY RETAILER OR THIRD PARTY CHARGEBACK POLICY OR PENALTY.

 

WE ASSUME NO RESPONSIBILITY OR LIABILITY FOR CLAIMS ARISING OUT OF, OR IN CONNECTION WITH, ANY INFORMATION, CONTENT, PRODUCTS, SERVICES, OR MATERIAL AVAILABLE ON OR THROUGH THE APP PROVIDED BY USERS (WHETHER POSTED BY EPIFRUIT, THIRD PARTIES OR BY USERS), AS WELL AS FOR ANY THIRD PARTY WEBSITE PAGES OR ADDITIONAL WEBSITES LINKED TO THIS APP, FOR ANY ERROR, DEFAMATION, LIBEL, SLANDER, OMISSION, FALSEHOOD, OBSCENITY, PORNOGRAPHY, PROFANITY, DANGER, OR INACCURACY CONTAINED THEREIN OR HARM TO PERSON OR PROPERTY CAUSED THEREBY.  

 

YOU AGREE TO HOLD EPIFRUIT AND DLVR HARMLESS FOR ANY AND ALL BODILY INJURIES TO YOU, AND FOR ANY AND ALL DAMAGE TO YOUR BIKE, CAR, OTHER DELIVERY VEHICLES, OR OTHER PROPERTY, THAT OCCURS WHILE USING THE APP OR DURING ANY PART OF A PICK-UP OR DELIVERY ARISING FROM USE OF THE APP.  FURTHER, YOU AGREE THAT EPIFRUIT WILL NOT BE RESPONSIBLE FOR INJURIES TO PERSONS ACCOMPANYING YOU ON PICK-UPS OR DELIVERIES ARISING FROM THE APP OR FOR ANY DAMAGE TO SUCH PERSON’S PROPERTY.  YOU AGREE TO BE SOLELY RESPONSIBLE FOR ANY INJURIES OR HARM CAUSED BY YOU OR YOUR BIKE, CAR, OTHER DELIVERY VEHICLES, OR OTHER PROPERTY DURING USE OF THE APP AND DURING ANY PART OF A PICK-UP OR DELIVERY ARISING FROM USE OF THE APP.

 

THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.  IN NO EVENT SHALL OUR TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION, WHETHER IN WARRANTY, CONTRACT, OR NEGLIGENCE EXCEED (A) THE AMOUNT PAID BY YOU TO EPIFRUIT, OR (B) $1,000 (WHICHEVER IS LESS).  BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

 

YOU AND EPIFRUIT AGREE THAT THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY IN THIS AGREEMENT ARE MATERIAL, BARGAINED-FOR BASES OF THIS AGREEMENT, AND THAT THEY HAVE BEEN TAKEN INTO ACCOUNT IN DETERMINING THE CONSIDERATION TO BE GIVEN BY EACH PARTY UNDER THIS AGREEMENT AND IN THE DECISION BY EACH PARTY TO ENTER INTO THIS AGREEMENT.  YOU AND EPIFRUIT AGREE THAT THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY IN THESE TERMS OF USE ARE FAIR AND REASONABLE.

 

IF YOU ARE DISSATISFIED WITH THE APP OR DO NOT AGREE TO ANY PROVISIONS OF THESE TERMS OF USE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE APP, EXCEPT AS MAY BE OTHERWISE PROVIDED FOR IN THIS SECTION.

 

14.  Third Party Links

 

The App may contain links to Websites that are owned, controlled, developed, sponsored, and/or maintained by third parties and which may be subject to additional terms and conditions (“Third Party Websites”).  EpiFruit does not review, monitor, operate, and/or control the Third Party Websites and EpiFruit makes no guarantees, representations, and/or warranties as to, and shall have no liability for, the content available on or through and/or the functioning of the Third Party Websites.  By providing access to Third Party Websites, EpiFruit is not recommending and/or otherwise endorsing the products and/or services provided by the sponsors and/or owners of those Websites.  Your access and/or use of the Third Party Websites, including providing information, materials, and/or other content to the Third Party Websites, is entirely at Your own risk.  EpiFruit reserves the right to discontinue links to any Third Party Websites at any time and for any reason, without notice.

 

15.  Additional Terms

 

Your use of the App is subject to any and all additional terms, policies, rules, or guidelines applicable to EpiFruit’s services or certain features of the App that We may post or link to on the App as updates going forward (collectively, the “Additional Terms”).  All such Additional Terms are hereby incorporated into this Agreement by reference.

 

16.  EpiFruit Fees

 

EpiFruit strives to provide its EpiFruit Partners with a cutting-edge experience that allows EpiFruit Partners to set their own rates and with their bids, control their own schedules, and to retain the maximum amount of their own earnings possible. In order to make the EpiFruit platform available to EpiFruit Partners, EpiFruit will automatically draw and retain 10% of EpiFruit Partner’s accepted bids on EpiFruit.  Each EpiFruit Partner agrees to the fee described under this paragraph by using the App. Any EpiFruit Partner or other user that does not agree to this fee should immediately discontinue use of EpiFruit.

 

17.  Privacy Policy

 

EpiFruits respects Your Privacy and is committed to keeping your confidential information safe. EpiFruit’s Privacy Policy is made publically available, and is incorporated into this Agreement by reference.

 

18.  Copyright Policy

 

EpiFruit respects the intellectual property of others, and We ask all of Our users to do the same.  If You believe that Your copyrighted work has been copied and is accessible on the App or another medium through which Our services may be accessed in a way that constitutes copyright infringement, please contact EpiFruit directly with notification containing the following information required by the Digital Millennium Copyright Act, 17 U.S.C. 512:

  1. A physical or electronic signature of a person authorized to act on behalf of the copyright owner of the work that allegedly has been infringed;

  2. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works allegedly have been infringed, then a representative list of such copyrighted works;

  3. Identification of the material that is claimed to be infringing and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Us to locate the allegedly infringing material, e.g., the specific web page address on the App;

  4. Information reasonably sufficient to permit Us to contact the party alleging infringement, including an email address;

  5. A statement that the party alleging infringement has a good-faith belief that use of the copyrighted work in the manner complained of is not authorized by the copyright owner, its agent, or the law; and

  6. A statement that the information in the notification is accurate, and under penalty of perjury, that the party alleging infringement is authorized to act on behalf of the copyright owner of the work that allegedly has been infringed.

 

EpiFruit reserves the right to seek all remedies available at law and in equity for violations of this Agreement, including without limitation the right to block access to the App from a particular Account, device and/or IP address.

 

19.  Changes To The Agreement

 

We may, acting alone, change this Agreement from time to time and without prior notice to You.  If We make a change to this Agreement, it will be effective as soon as We make it publically available, and the most current version of this Agreement will always be made available directly on the App (“Updated Terms”).  If We make a material change to the Agreement, We may notify You.  You agree that You will review this Agreement periodically.  By continuing to access and/or use the App after We post Updated Terms, You agree to be bound by the Updated Terms, and if You do not agree to the Updated Terms, You will stop using the App.  This Agreement will govern any disputes arising before the effective date of the Updated Terms, and will automatically terminate once Updated Terms are made publically available.

 

20.  Governing Law

 

You acknowledge and agree that Your access to and/or use of the App, the Materials, and other content is subject to all applicable international, federal, state, and local laws and regulations.  The terms, conditions, and policies contained in this Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to its conflict of laws principles.

 

21.  Dispute Resolution

 

Arbitration.  YOU AGREE THAT ALL CLAIMS, DISPUTES, OR DISAGREEMENTS THAT MAY ARISE OUT OF THE INTERPRETATION OR PERFORMANCE OF THIS AGREEMENT, OR THAT IN ANY WAY RELATE TO YOUR USE OF THE APP, THE MATERIALS, AND/OR OTHER CONTENT, SHALL BE SUBMITTED EXCLUSIVELY TO BINDING ARBITRATION, EXCEPT THAT EACH PARTY RETAINS THE RIGHT TO BRING AN INDIVIDUAL ACTION IN SMALL CLAIMS COURT AND THE RIGHT TO SEEK INJUNCTIVE OR OTHER EQUITABLE RELIEF IN A COURT OF COMPETENT JURISDICTION TO PREVENT THE ACTUAL OR THREATENED INFRINGEMENT, MISAPPROPRIATION, OR VIOLATION OF A PARTY’S COPYRIGHTS, TRADEMARKS, TRADE SECRETS, PATENTS, OR OTHER INTELLECTUAL PROPERTY RIGHTS.  ARBITRATION MEANS THAT AN ARBITRATOR AND NOT A JUDGE OR JURY WILL DECIDE THE CLAIM.  Rights to prehearing exchange of information and appeals may also be limited in arbitration.  You acknowledge and agree that You and EpiFruit are each waiving the right to a trial by jury.  You further acknowledge and agree that You waive Your right to participate as a plaintiff or class member in any purported class action or representative proceeding against EpiFruit, DLVR, and their affiliates.  Further, unless both You and EpiFruit otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding.  If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution” section will be deemed void and shall be severed from the remainder of the Agreement.  Except as provided in the preceding sentence, this Dispute Resolution section will survive any termination of this Agreement.  You further acknowledge that any claim arising under this Agreement will be brought within one year of its accrual or it will be waived.

 

Arbitration Rules.  The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section.  (The AAA Rules are publically available at www.adr.org/aaa/ShowProperty?nodeId=/UCM/ADRSTAGE2021425& or by calling the AAA at 1-800-778-7879).  The Federal Arbitration Act will govern the interpretation and enforcement of this Section.

 

Arbitration Process.  A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules.  (The AAA provides a form Demand for Arbitration at https://www.adr.org/cs/idcplg?IdcService=GET_FILE&dDocName=ADRSTAGE2034889&RevisionSelectionMethod=LatestReleased.)  The arbitrator will be either a retired judge or an attorney licensed to practice law in the county in which You reside and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators.  If the parties are unable to agree upon an arbitrator within seven days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.

 

Arbitration Location and Procedure.  Unless You and EpiFruit otherwise agree, the arbitration will be conducted in the county where You reside.  If Your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents You and EpiFruit submit to the arbitrator, unless You request a hearing or the arbitrator determines that a hearing is necessary.  If Your claim exceeds $10,000, Your right to a hearing will be determined by the AAA Rules.  Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.

 

Arbitrator’s Decision.  The arbitrator will render an award within the time frame specified in the AAA Rules.  The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award, and such findings shall be binding on both parties.  Judgment on the arbitration award may be entered in any court having jurisdiction thereof.  The parties agree that the arbitrator’s award damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and the amounts of damages for which a party may be held liable.  The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim.  If You prevail in arbitration, You will be entitled to an award of attorneys’ fees and reasonable expenses to the extent provided under applicable law.

 

Fees.  Your responsibility to pay any AAA filing, administrative, and arbitrator fees will be solely as set forth in the AAA Rules.  However, if Your claim for damages does not exceed $10,000, EpiFruit will pay all such fees unless the arbitrator finds that either the substance of Your claim or the relief sought in Your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).

 

Changes.  EpiFruit reserves the right to change this “Dispute Resolution” section, but any such changes will not apply to disputes arising before the effective date of such amendment.  Notwithstanding the provisions of the modification-related provisions above, if EpiFruit changes this “Dispute Resolution” section after the date You first accepted this Agreement (or accepted any subsequent changes to this Agreement), You agree that Your continued use of the App after such change will be deemed acceptance of those changes.  If You do not agree to such change, You may reject any such change by providing EpiFruit written notice of such rejection by mail or hand delivery within 30 days of the date such change became effective, as indicated in the effective date below.  In order to be effective, the notice must include Your full name and clearly indicate Your intent to reject changes to this “Dispute Resolution” section.  By rejecting changes to the “Dispute Resolution” of any Updated Terms, You are agreeing that either You will (1) arbitrate any dispute between You and EpiFruit in accordance with the provisions of this “Dispute Resolution” section as of the date You first accepted this Agreement (or accepted any subsequent changes to this Agreement, as applicable), or (2) accept the termination Your Account and this Agreement and all rights and obligations under it.

 

22.  Discrimination Policy

 

EpiFruit and DLVR are dedicated to creating a world full of good karma.  The purpose of the App is to bring people and the things that they love closer together.  To that end, Retailers, EpiFruit Partners, and all other EpiFruit users, agree to read and act in accordance with the following discrimination policy below to strengthen Our community.

 

Discrimination based on race, color, national origin, creed, religion, sexual orientation, gender identity, age, or marital status is not permitted on the App.  Retailers and EpiFruit Partners shall not be permitted to accept or reject opportunities on the App in a discriminatory manner.  If EpiFruit suspects such discrimination, EpiFruit may, in its sole discretion and determination, restrict, suspend or terminate the Account of, or access to the App for, any user that violates this policy.  Nothing in this paragraph shall limit those provisions and obligations governing the delivery of alcoholic beverages and tobacco described in the “Permitted Content and Conduct” section of this Agreement.

 

23.  Waiver And Severability

 

Any waiver by EpiFruit of any provision of this Agreement must be in a signed writing.  If any portion of this Agreement is found to be void, invalid, or otherwise unenforceable, then that portion shall be deemed to be superseded by a valid, enforceable provision that matches the intent of the original provision as closely as possible.  The remainder of this Agreement shall continue to be fully enforceable and valid according to terms contained herein.


 

Last Updated: 12.19.2017