ICA - NZ - New Zealand - Dx
Last Updated: February 2022
This Agreement (“Agreement”) is made and entered into by and between you, the undersigned contractor (“CONTRACTOR”), an independent contractor engaged in the business of performing the services contemplated by this Agreement, and DoorDash Technologies New Zealand (“DOORDASH,” “COMPANY,” “we,” “us,” or “our”). CONTRACTOR may enter this Agreement either as an individual sole proprietor or a corporate entity. This Agreement will become effective on the date it is accepted regardless of whether you are eligible to, or ever do, perform any Contracted Services.
IMPORTANT: PLEASE REVIEW THIS AGREEMENT CAREFULLY. IN PARTICULAR, PLEASE REVIEW THE MUTUAL ARBITRATION PROVISION IN SECTION XII, AS IT REQUIRES THE PARTIES (UNLESS YOU VALIDLY OPT OUT OF ARBITRATION, AS PROVIDED BELOW) TO RESOLVE DISPUTES ON AN INDIVIDUAL BASIS, TO THE FULLEST EXTENT PERMITTED BY LAW, THROUGH FINAL AND BINDING ARBITRATION. BY ACCEPTING THIS AGREEMENT, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTOOD ALL OF THE TERMS, INCLUDING SECTION XII, AND HAVE TAKEN THE TIME AND SOUGHT ANY ASSISTANCE NEEDED TO COMPREHEND THE CONSEQUENCES OF ACCEPTING THIS AGREEMENT.
PLEASE READ THE TERMS OF THIS AGREEMENT CAREFULLY. BY ACCESSING THE DOORDASH PLATFORM AS A DASHER, YOU AGREE TO BE BOUND BY (1) THIS AGREEMENT, (2) DOORDASH DASHER PRIVACY POLICY, AND (3) DOORDASH CONSUMER TERMS OF SERVICE.
RECITALS
DOORDASH is a company that provides an online marketplace platform using web-based technology that connects contractors, restaurants and/or other businesses, and consumers (“DOORDASH platform” or “platform”). DOORDASH’s software permits registered users to place orders for food and/or other goods from various restaurants and businesses. Once such orders are made, DOORDASH software notifies contractors that a Delivery Opportunity is available and the DOORDASH software facilitates completion of the delivery. DOORDASH is not a restaurant, food delivery service, or food preparation business.
CONTRACTOR is an independent provider of delivery and other services, authorized to conduct the services contemplated by this Agreement in the geographic location(s) in which CONTRACTOR operates. CONTRACTOR possesses all equipment and personnel necessary to perform the delivery and any other services contemplated by this Agreement in accordance with applicable laws. CONTRACTOR desires to enter into this Agreement for the right to receive delivery opportunities made available through DOORDASH'S platform. CONTRACTOR understands and expressly agrees that they are not an employee of DOORDASH or any restaurant, other business or consumer and that they are providing delivery and other services on behalf of themself and their business, not on behalf of DOORDASH. CONTRACTOR understands (i) they are free to select the times they wish to be available on the platform to receive delivery opportunities; (ii) they are free to negotiate their compensation by among other things accepting or rejecting the opportunities transmitted through the DOORDASH platform by consumers, and can make such decisions to maximize their opportunity to profit; and (iii) they have the sole right to control the manner in which deliveries are performed and the means by which those deliveries are completed.
In consideration of the above, as well as the mutual promises described herein, DOORDASH and CONTRACTOR (collectively “the parties”) agree as follows:
I. PURPOSE OF THE AGREEMENT
This Agreement governs the relationship between DOORDASH and CONTRACTOR, and establishes the parties’ respective rights and obligations. In exchange for the promises contained in this Agreement, CONTRACTOR shall have the right and obligation to perform the “Contracted Services” as defined herein. However, nothing in this Agreement requires CONTRACTOR to perform any particular volume of Contracted Services during the term of this Agreement, and nothing in this Agreement shall guarantee CONTRACTOR any particular volume of business for any particular time period.
CONTRACTOR shall have no obligation to accept or perform any particular “Delivery Opportunity” (as that term is defined herein) offered through the DOORDASH platform. However, once a Delivery Opportunity is accepted, CONTRACTOR shall be contractually bound to complete the Contracted Services in accordance with all consumer specifications and the terms laid out in this Agreement.
II. CONTRACTOR'S OPERATIONS
CONTRACTOR represents that they operate an independently established enterprise that provides delivery and other services, and that they satisfy all legal requirements and have all necessary licenses and permits necessary to perform any services contemplated by this Agreement. As an independent contractor/enterprise, CONTRACTOR shall be solely responsible for determining how to operate their business and how to perform the Contracted Services.
CONTRACTOR agrees to provide DOORDASH with information that is true and accurate, and to promptly inform DOORDASH should any information require updating.
CONTRACTOR agrees to fully perform the Contracted Services in a timely, efficient, safe, and lawful manner. DOORDASH shall have no right to, and shall not, control the manner, method or means CONTRACTOR uses to perform the Contracted Services. Instead, CONTRACTOR shall be solely responsible for determining the most effective, efficient, and safe manner to perform the Contracted Services, including determining the manner of pickup, delivery, and route selection.
As an independent business enterprise, CONTRACTOR retains the right to perform services (whether delivery services or other services) for other businesses, and CONTRACTOR advertises and holds themself out to the general public as a separately established business. The parties recognize that they are or may be engaged in similar arrangements with other businesses to supply the same or similar services and nothing in this Agreement shall prevent CONTRACTOR or DOORDASH from doing business with others. DOORDASH does not have the right to restrict CONTRACTOR from performing services for CONTRACTOR’s own business, other businesses, customers, or consumers at any time, even if such business directly competes with DOORDASH, and even during the time CONTRACTOR is logged into the DOORDASH platform so long as such services do not otherwise violate this agreement. CONTRACTOR’s right to compete with DOORDASH, or perform services for businesses that compete with DOORDASH, will survive even after termination of this Agreement.
CONTRACTOR is not required to purchase, lease, or rent any products, equipment or services from DOORDASH as a condition of doing business with DOORDASH or entering into this Agreement.
CONTRACTOR agrees to immediately notify DOORDASH in writing at www.doordash.com/help/ if CONTRACTOR’s right to control the manner or method they use to perform services differs from the terms contemplated in this Section.
When signing up to be a user of the DOORDASH platform, CONTRACTOR’s information will be used to create an account. CONTRACTOR may not sign up to be a Dasher more than once by creating multiple accounts.
CONTRACTOR acknowledges that when engaging with the DOORDASH platform on a mobile device, data usage and rates may apply.
By using the DOORDASH platform, CONTRACTOR also agrees to be bound by the DOORDASH Customer Terms of Service and that any breach of the DOORDASH Customer Terms of Service will be considered a breach of this Agreement. However, to the extent that this Agreement and the DOORDASH Customer Terms of Service conflict, the terms of this Agreement shall govern.
To prevent unauthorized access to CONTRACTOR’s account and to prevent unauthorized use of the DOORDASH platform, CONTRACTOR agrees to protect and keep confidential their email, phone number, password, or other means of accessing their account via the DOORDASH platform. CONTRACTOR acknowledges that unauthorized use of CONTRACTOR’s account, email, phone number and password could lead to financial loss and access to CONTRACTOR’s sensitive personal and account information. If CONTRACTOR discloses their account information, user ID, and/or password to any person or entity, CONTRACTOR assumes all risks and losses associated with such disclosure. If CONTRACTOR believes someone may attempt to use or has accessed CONTRACTOR’s account without CONTRACTOR’s permission, or that any other unauthorized use or security breach has occurred, CONTRACTOR agrees to immediately notify us at www.doordash.com/help/.
III. CONTRACTED SERVICES
From time to time, the DOORDASH platform will notify CONTRACTOR of the opportunity to complete deliveries from restaurants or other businesses to consumers in accordance with orders placed by consumers through the DOORDASH platform or directly from restaurants or other businesses (each of these is referred to as a "Delivery Opportunity"). CONTRACTOR agrees by logging into the DOORDASH platform as a Dasher, CONTRACTOR is making themself available to receive Delivery Opportunities, which CONTRACTOR may accept or reject. For each Delivery Opportunity accepted by CONTRACTOR ("Contracted Service"), CONTRACTOR agrees to proceed to the restaurant or other business to retrieve the order in a safe and timely fashion, ensure the order is accurately filled according to the consumer, restaurant, and/or business specifications, and complete delivery of the order to consumers in a safe and timely fashion without taking any action that would change the quality or presentation of the items being delivered and while adhering to reasonable expectations on food safety, quality and health standards as required by the restaurants or other businesses and/or applicable law. A Delivery Opportunity is considered complete when the order has been delivered to the ordering party, or, and only when applicable, placed in a designated area as selected by the consumer, in addition to any other task required for completion of the delivery. CONTRACTOR agrees to timely mark a delivery as completed through the DOORDASH platform upon delivery of the order to the ordering party.
CONTRACTOR understands and agrees that the parameters of each Contracted Service are established by the consumer, restaurant, and/or other business, not DOORDASH, and represent the end result desired, not the means by which CONTRACTOR is to accomplish the result. CONTRACTOR has the right to cancel a Contracted Service when, in the exercise of CONTRACTOR's reasonable discretion and business judgment, it is appropriate to do so. Notwithstanding the foregoing, CONTRACTOR agrees to maintain both a customer rating and a completion rate found here as of the date this Agreement becomes effective. Failure to satisfy this obligation constitutes a material breach of this Agreement, and DOORDASH shall have the right to terminate this Agreement and/or deactivate CONTRACTOR'S account.
CONTRACTOR acknowledges that DOORDASH has discretion as to which, if any, Delivery Opportunity to present to CONTRACTOR, just as CONTRACTOR has the discretion whether and to what extent to accept any Delivery Opportunity.
CONTRACTOR warrants that CONTRACTOR is engaged in CONTRACTOR’s own business, separate and apart from DOORDASH’S business, which is to provide an online marketplace platform using web-based technology that connects contractors, restaurants and/or other businesses, and consumers.
CONTRACTOR authorizes DOORDASH, during the course of a Contracted Service, to communicate with CONTRACTOR, consumer, and/or restaurant or other business to assist CONTRACTOR, or facilitate direct communication between CONTRACTOR and the consumer, restaurant, and/or business, to the extent permitted by CONTRACTOR, in facilitating deliveries. However, under no circumstances shall DOORDASH be authorized to control the manner or means by which CONTRACTOR performs delivery services or other services contemplated under this Agreement. This includes, but is not limited to, the following:
DOORDASH does not require any specific type, or quality, of CONTRACTOR’s choice of transportation.
CONTRACTOR does not have a supervisor or any individual at DOORDASH to whom they report.
CONTRACTOR is not required to use any signage or other designation of DOORDASH on their vehicle or person at any point in their use of the platform to perform the Contracted Services.
DOORDASH has no control over CONTRACTOR’s personal appearance.
CONTRACTOR does not receive performance evaluations by DOORDASH.
CONTRACTOR may use whatever payment method they choose to purchase items to be delivered to consumers, including but not limited to CONTRACTOR's personal credit or debit card, cash, or a prepaid card. CONTRACTOR may use, for CONTRACTOR's convenience, the prepaid card solely for purchasing items to be delivered to consumers. If CONTRACTOR chooses to use their personal credit or debit card or cash, CONTRACTOR shall invoice DOORDASH on a weekly basis and DOORDASH agrees to pay all invoices within 10 days of receipt.
In the event CONTRACTOR fails to fully perform any Contracted Service (a "Service Failure") due to CONTRACTOR's action or omission, CONTRACTOR shall forfeit all or part of the agreed upon fee for that service. If CONTRACTOR disputes responsibility for a Service Failure, the dispute shall be resolved pursuant to the "Payment Disputes" provision below.
CONTRACTOR agrees to immediately notify DOORDASH in writing by submitting a Support inquiry through https://help.doordash.com/s/ if CONTRACTOR's services or scope of work differ in any way from what is contemplated in this Section.
IV. CONTENT
Parts of the DOORDASH platform enable CONTRACTOR to provide feedback, text, photos, audio, video, information, and other content (collectively, “Content”). By providing Content, in whatever form and through whatever means, CONTRACTOR grants DOORDASH a non-exclusive, worldwide, royalty-free, irrevocable, perpetual, sub-licensable and transferable license to copy, modify, prepare derivative works of, distribute, publish and otherwise exploit, that Content, without limitation. If Content includes personal information, DOORDASH’s Privacy Policy describes how DOORDASH uses that personal information. Where DOORDASH pays for the creation of Content or facilitates its creation, DOORDASH will, unless otherwise agreed in writing, own that Content, in which case supplemental terms or disclosures will say that. CONTRACTOR is solely responsible for all Content that CONTRACTOR provides and warrants that CONTRACTOR either own it or is authorized to grant DOORDASH the rights described in these Terms. CONTRACTOR is responsible and liable if any of CONTRACTOR’s Content violates or infringes the intellectual property or privacy rights of any third party. Content that is, among other things, discriminatory, obscene, harassing, deceptive, violent, or illegal is prohibited, and Content must comply with all applicable DOORDASH policies, including but not limited to the DOORDASH Content Policy. CONTRACTOR agrees that DOORDASH may make available services or automated tools to translate Content and that CONTRACTOR’s Content may be translated using such services or tools.
V. RELATIONSHIP OF PARTIES
The parties acknowledge and agree that this Agreement is between two co-equal, independent business enterprises 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. The parties are not employees, agents, joint venturers, or partners of each other for any purpose. Neither party shall have the right to bind the other by contract or otherwise except as specifically provided in this Agreement.
DOORDASH shall not have the right to, and shall not, control the manner or the method of accomplishing Contracted Services to be performed by CONTRACTOR. The parties acknowledge and agree that those provisions of the Agreement reserving ultimate authority in DOORDASH have been inserted solely for the safety of consumers and other CONTRACTORS using the DOORDASH platform or to achieve compliance with local laws, regulations, and interpretations thereof.
VI. PAYMENT FOR SERVICES
Unless a different rate of pay is negotiated or CONTRACTOR is notified otherwise by DOORDASH in writing or except as provided herein, CONTRACTOR will receive payment per accurate Contracted Service completed in an amount consistent with the publicly provided pay model, which CONTRACTOR can view here. DOORDASH reserves the right to adjust or withhold all or a portion of payment owed to CONTRACTOR if DOORDASH reasonably believes that CONTRACTOR has defrauded or abused, or attempted to defraud or abuse, the platform. From time to time, DOORDASH may offer opportunities for CONTRACTOR to earn more money for performing Contracted Services at specified times or in specified locations. Nothing prevents the parties from negotiating a different rate of pay, and CONTRACTOR is free to accept or reject any such opportunities to be paid at different rates.
DOORDASH’s online credit card software may permit consumers to add a gratuity to be paid to CONTRACTOR, and consumers can also pay a gratuity to CONTRACTOR in cash. CONTRACTOR shall retain 100% of any gratuity paid by the consumer, whether by cash or credit card. DOORDASH acknowledges it has no right to interfere with the amount of gratuity given by the consumer to the CONTRACTOR.
For purchases that involve consumer payment via the DOORDASH platform, DOORDASH will process payments made by consumers and transmit applicable payment for the Contracted Services to CONTRACTOR. Payments for all Contracted Services completed in a given week, less the amount of cash payments that CONTRACTOR receives from cash-based Contracted Services they complete, will be transferred via direct deposit on no less than a weekly basis unless DOORDASH notifies CONTRACTOR otherwise in writing or CONTRACTOR opts to receive payments sooner via Fast Pay or the DasherDirect program.
Where applicable, DOORDASH offers CONTRACTOR the option to receive payments daily to a debit card via Fast Pay. For a fee of $1.99 per transaction, DOORDASH will transfer these funds earlier than the scheduled weekly payout. By electing to use Fast Pay, CONTRACTOR agrees to be charged $1.99 per transaction and bound by any and all conditions set forth here.
CONTRACTOR is responsible for verifying the accuracy of their bank account and/or debit card information to receive timely payments. DOORDASH is not responsible for lost or late payments due to incorrect routing and/or account information.
From time to time, DOORDASH may offer CONTRACTOR a cash-based Delivery Opportunity. The order subtotal and CONTRACTOR earnings from those Delivery Opportunities will be deducted from CONTRACTOR’s earnings balance in the DOORDASH platform, and CONTRACTOR will keep the cash provided by the customer. CONTRACTOR is responsible for tracking, reporting, and paying appropriate taxes on all tips received from cash-based Delivery Opportunities.
Notwithstanding the terms of Section VI(1) – (3), fulfillment orders placed directly with restaurants or other businesses rather than through the platform or doordash.com (“Fulfillment Orders”) may be subject to a different payment model. More information regarding Fulfillment Orders may be found here. Nothing prevents the parties from negotiating a different rate of pay for a Fulfillment Order, and the CONTRACTOR is free to accept or reject Fulfillment Order opportunities. As with all Delivery Opportunities, CONTRACTOR shall retain 100% of any gratuity paid by the consumer for a Fulfillment Order. DoorDash's software may not always include an option to add gratuity for Fulfillment Orders; however, consumers can pay a gratuity to CONTRACTOR in cash.
From time to time, DOORDASH may offer various Dasher promotions or referral programs. CONTRACTOR agrees that they will not manipulate or abuse the referral programs or Dasher promotions by, among other things: (a) tampering with the location feature on their mobile phone; (b) collecting incentive or promotional pay when not eligible to receive such pay under relevant policies; or, (c) creating multiple Dasher or consumer accounts. CONTRACTOR understands that engaging in this type of manipulation or abuse constitutes a material breach of this Agreement and may lead to deactivation of their account.
CONTRACTOR will ensure that it is registered for GST purposes if legally required to do so and it will provide DOORDASH with its GST number should DOORDASH require it.
VII. PAYMENT DISPUTES
CONTRACTOR's Failure: In the event there is a Service Failure, CONTRACTOR shall not be entitled to payment as described above (as determined in DOORDASH’s reasonable discretion). Any withholding of payment shall be based upon proof provided by the consumer, restaurant or other business, CONTRACTOR, and any other party with information relevant to the dispute. DOORDASH shall make the initial determination as to whether a Service Failure was the result of CONTRACTOR's action/omission. CONTRACTOR shall have the right to challenge DOORDASH’s determination through any legal means contemplated by this Agreement; however, CONTRACTOR shall notify DOORDASH in writing at www.doordash.com/help/ of the challenge and provide DOORDASH the opportunity to resolve the dispute. CONTRACTOR should include any documents or other information in support of their challenge.
DOORDASH’s Failure: In the event DOORDASH fails to remit payment in a timely or accurate manner, except as provided in Section VI(5), CONTRACTOR shall have the right to seek proper payment by any legal means contemplated by this Agreement however, CONTRACTOR shall first inform DOORDASH in writing at www.doordash.com/help/ of the failure and provide a reasonable opportunity to cure it.
VIII. EQUIPMENT AND EXPENSES
CONTRACTOR represents that they have or can lawfully acquire all equipment, including vehicles and food thermal bags ("Equipment") necessary for performing Contracted Services, and CONTRACTOR is solely responsible for ensuring that any vehicle used, and CONTRACTOR or their Personnel’s operation of that vehicle, conforms to all vehicle laws pertaining to registration, safety, equipment, inspection, operational capability and licensing.
CONTRACTOR agrees that they are responsible for all costs and expenses arising from CONTRACTOR's performance of Contracted Services, including, but not limited to, costs related to CONTRACTOR's Personnel (defined below) and Equipment. Except as otherwise required by law, CONTRACTOR assumes all risk of damage or loss to their Equipment.
IX. PERSONNEL
In order to perform any Contracted Services, CONTRACTOR must, for the safety of consumers on the DOORDASH platform, pass a background check administered by a third-party vendor, subject to CONTRACTOR's lawful consent. CONTRACTOR is not required to perform any Contracted Services personally, but may, to the extent permitted by law and subject to the terms of this Agreement, hire or engage others (as employees or subcontractors of CONTRACTOR) to perform all or some of the Contracted Services, provided any such employees or subcontractors meet all the requirements applicable to CONTRACTOR including, but not limited to, accepting the terms of this Agreement, separately completing the process to receive Delivery Opportunities, and being eligible to provide the Contracted Services in the geographic location. To the extent CONTRACTOR furnishes their own employees or subcontractors (collectively "Personnel"), CONTRACTOR shall be solely responsible for the direction and control of the Personnel CONTRACTOR uses to perform all Contracted Services.
CONTRACTOR assumes full and sole responsibility for the payment of all amounts due to their Personnel for work performed in relation to this Agreement, including all wages, holiday pay, benefits and expenses, if any, and for all required taxes, GST, insurances, duties or levies that may be payable in respect of the Contracted Services as to CONTRACTOR and all Personnel employed by CONTRACTOR in the performance of Contracted Services under this Agreement. DOORDASH is not an employer or joint employer of CONTRACTOR’s Personnel, and shall have no responsibility for any wages, benefits, expenses, or other payments due CONTRACTOR’s Personnel, nor for income tax withholding or any other imposition relating to CONTRACTOR or their Personnel. Neither CONTRACTOR nor their Personnel shall receive any wages, including holiday pay, from DOORDASH, nor shall they participate in or receive any other benefits, if any, available to DOORDASH’s employees.
Unless mandated by law, DOORDASH shall have no authority to withhold income taxes, or any other local tax on behalf of CONTRACTOR or their Personnel.
CONTRACTOR and their Personnel shall not be required to wear a uniform or other clothing of any type bearing DOORDASH’s name or logo.
If CONTRACTOR uses the services of any Personnel to perform the Contracted Services, CONTRACTOR’s Personnel must satisfy and comply with all of the terms of this Agreement, which CONTRACTOR must make enforceable by written agreement between CONTRACTOR and such Personnel. A copy of such written agreement must be provided to DOORDASH at least 7 days in advance of such Personnel performing the Contracted Services, and CONTRACTOR must notify DOORDASH when their Personnel will be performing Contracted Services. The parties acknowledge that the sole purpose of this requirement is to ensure CONTRACTOR’s compliance with the terms of this Agreement.
X. INSURANCE
CONTRACTOR agrees, as a condition of doing business with DOORDASH, that during the term of this Agreement, CONTRACTOR will maintain current insurance, in amounts and of types appropriate to provide the Contracted Services (including vehicle and third party insurance) and cover CONTRACTOR during performance of the Contracted Services, at their own expense. CONTRACTOR acknowledges that failure to secure or maintain satisfactory insurance coverage shall be deemed a material breach of this Agreement and shall result in the termination of the Agreement and the loss of CONTRACTOR’s right to receive Delivery Opportunities.
NOTIFICATION OF COVERAGE: CONTRACTOR agrees to deliver to DOORDASH, upon request, current certificates of insurance as proof of coverage. CONTRACTOR agrees to provide updated certificates each time CONTRACTOR purchases, renews, or alters CONTRACTOR’s insurance coverage. CONTRACTOR agrees to give DOORDASH at least thirty (30) days’ prior written notice before cancellation of any insurance policy required by this Agreement.
ACCIDENT COMPENSATION: CONTRACTOR is solely responsible for payment of any tax levies under the Injury Prevention, Rehabilitation and Compensation Act 2001 and its amendments.
XI. INDEMNITY
DOORDASH agrees to indemnify, protect and hold harmless CONTRACTOR from any and all claims, demands, damages, suits, losses, liabilities and causes of action arising directly from DOORDASH’s actions offering and facilitating the Contracted Services to CONTRACTOR.
CONTRACTOR agrees to indemnify, protect and hold harmless DOORDASH, including all parent, subsidiary and/or affiliated companies, as well as its and their past and present successors, assigns, officers, owners, directors, agents, representatives, lawyers, and employees, from any and all claims, demands, damages, suits, losses, liabilities and causes of action arising directly or indirectly from, as a result of or in connection with, the actions of CONTRACTOR and/or their Personnel arising from the performance of delivery services under this Agreement, including personal injury or death to any person (including to CONTRACTOR and/or their Personnel), to the extent permitted by law, as well as any liability arising from CONTRACTOR’s failure to comply with the terms of this Agreement. CONTRACTOR’s obligations hereunder shall include the cost of defense, including lawyers’ fees, as well as the payment of any final judgment rendered against or settlement agreed upon by DOORDASH or its parent, subsidiary and/or affiliated companies.
CONTRACTOR agrees to indemnify, protect and hold harmless DOORDASH, including all parent, subsidiary, and/or affiliated companies, as well as its and their past and present successors, assigns, officers, owners, directors, agents, representatives, lawyers, and employees, from any and all tax liabilities and responsibilities for payment of all taxes, including, but not limited to all income taxes, and any contributions imposed or required under law, with respect to CONTRACTOR and CONTRACTOR’s Personnel.
CONTRACTOR shall be responsible for, indemnify and hold harmless DOORDASH, 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, from all costs of CONTRACTOR’s business, including, but not limited to, the expense and responsibility for any and all applicable insurance, local, state or federal licenses, permits, taxes, and assessments of any and all regulatory agencies, boards or municipalities.
XII. MUTUAL ARBITRATION PROVISION
MEDIATION
A party may, at any time while there is a genuine dispute relating in any way to this Agreement (Dispute) give written notice specifying the nature of the dispute and its intention to refer such dispute or difference to mediation. If a request to mediate is made, the parties may appoint a mediator to mediate and settle the dispute. If a mediator cannot be agreed between the parties, the party making the request will invite the Chair for the time being of the Resolution Institute to appoint a mediator. All discussions in the mediation will be without prejudice and will not be referred to in any later proceedings. The parties will bear their own costs in the mediation and will equally share the mediator's costs.
ARBITRATION
In the event the parties are unable (or unwilling) to resolve a Dispute by mediation, a party may give written notice (Dispute Notice) to the other party referring the Dispute to arbitration under the Arbitration Act 1996 (Arbitration Act).
If a Dispute is submitted to arbitration under clause XII(1), the arbitration will be conducted under the Arbitration Act, provided that:
(a)for the purposes of the following articles in the First Schedule to the Arbitration Act:
Article 11(2): the arbitrator will be the person agreed upon in writing by the parties or, if the parties are unable to agree on an arbitrator within 5 Business Days after delivery of the Notice, nominated by the President for the time being of the Arbitrators' and Mediators' Institute of New Zealand Inc;
Article 20(1): the place of arbitration will be Auckland, New Zealand;
Article 21: the date on which the arbitration proceedings commence will be the date on which the Dispute is submitted to arbitration under clause XII(1);
Article 22(1): the language used in the arbitration proceedings will be English;
Article 28(1): the law applicable to the substance of the Dispute will be New Zealand law;
Article 31(5): the rate of interest payable on any sum directed to be paid by an arbitration award will be 5%;
the arbitration will not be an international arbitration for the purposes of the Arbitration Act;
the decision of the arbitrator will be final and binding on the parties.
Any application by a party for urgent interim relief at any time before an arbitrator is appointed will be determined by an emergency arbitrator pursuant to the Emergency Arbitration Protocol of the Arbitrators' and Mediators' Institute of New Zealand Inc.
XIII. LITIGATION CLASS ACTION WAIVER
To the extent allowed by applicable law, separate and apart from the Mutual Arbitration Provision found in Section XI, CONTRACTOR agrees that any proceeding to litigate in court any dispute arising out of or relating to this Agreement, whether because CONTRACTOR opted out of the Mutual Arbitration Provision or any other reason, will be conducted solely on an individual basis, and CONTRACTOR agrees not to seek to have any controversy, claim or dispute heard as a class action, a representative action, a collective action, a private attorney-general action, or in any proceeding in which CONTRACTOR acts or proposes to act in a representative capacity (“Litigation Class Action Waiver”). CONTRACTOR further agrees that no proceeding will be joined, consolidated, or combined with another proceeding, without the prior written consent of all parties to any such proceeding. If a court of competent jurisdiction determines that all or part of this Litigation Class Action Waiver is unenforceable, unconscionable, void or voidable, any part of this clause that is deemed to be unenforceable, unconscionable, void or voidable will be deemed to be deleted from this Agreement but on the basis that the remainder of this Agreement shall remain in full force and effect.
XIV. PROPRIETARY RIGHTS AND LICENSES
All copyright, database rights, trademarks (whether registered or unregistered), design rights (whether registered or unregistered), patent applications, patents, and other intellectual property rights of any nature in the DOORDASH platform together with the underlying software code and any and all rights in, or derived from the DOORDASH platform are proprietary and owned either directly by DOORDASH or by DOORDASH’s licensors and are protected by applicable intellectual property and other laws. CONTRACTOR agrees that they will not use such proprietary information, materials, or intellectual property rights in any way whatsoever except for by use of the DOORDASH platform to perform the Contracted Service in compliance with the terms of this Agreement. No portion of the DOORDASH platform may be reproduced in any form or by any means, except as expressly permitted in the terms of this Agreement. CONTRACTOR agrees not to modify, rent, lease, loan, sell, distribute, or create derivative works based on the DOORDASH platform or any intellectual property rights therein in any manner, and CONTRACTOR shall not exploit the DOORDASH platform or any intellectual property rights therein in any unauthorized way whatsoever.
DOORDASH hereby grants CONTRACTOR a non-exclusive, non-transferable, non-sublicensable, revocable license to use the DOORDASH platform solely for their lawful use to perform the Contracted Services in accordance with these terms of this Agreement. DOORDASH retains all rights, title, and interest in and to the DOORDASH platform and its other intellectual property rights therein. Any such license shall terminate upon termination of this Agreement.
CONTRACTOR acknowledges and agrees that any questions, comments, suggestions, ideas, feedback or other information (“Submissions”) provided by CONTRACTOR to DOORDASH regarding the DOORDASH platform are provided freely and shall become the sole property of DOORDASH. DOORDASH shall own exclusive rights of such Submissions, including all intellectual property rights therein, and shall be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to CONTRACTOR.
XV. LEGAL PROCESSES AFFECTING DASHER ACCOUNTS
If legal action such as a garnishment, levy or other state or federal legal process (“Legal Process”) is brought against CONTRACTOR’S Dasher account, DOORDASH will not contest on CONTRACTOR’S behalf any such Legal Process and may take action to comply with such Legal Process as DOORDASH determines to be appropriate in the circumstances without liability to CONTRACTOR. CONTRACTOR agrees that DOORDASH may honor Legal Process that is served personally, by mail, email or facsimile transmission at any DOORDASH facility or at the office of any agent authorized by appointment or by law to receive service on behalf of DOORDASH, even if such service is insufficient under law.
If Legal Process is brought against CONTRACTOR’S Dasher account, DOORDASH may prohibit CONTRACTOR from utilizing payment options other than weekly direct deposits (i.e., prohibiting use of “Fast Pay,” “DasherDirect” or other payment alternatives that DOORDASH may offer to CONTRACTOR). CONTRACTOR shall be liable to DOORDASH for any amounts received by CONTRACTOR through payment options other than weekly direct deposit that otherwise would have been withheld pursuant to such Legal Process, and DOORDASH may recoup or offset such amounts from any obligation owed by DOORDASH to CONTRACTOR.
CONTRACTOR acknowledges that Legal Process against CONTRACTOR’S Dasher account may result in delays in payments to CONTRACTOR. DOORDASH shall not be liable to CONTRACTOR on account of any losses resulting from such delay.
XVI. HEALTH AND SAFETY
CONTRACTOR must comply, and must ensure its Personnel comply, at all times with the Health and Safety at Work Act 2015 (HSWA) and all related legislative instruments, guidance and codes of practice (Health and Safety Legislation), DOORDASH’s health and safety rules, policies and procedures and all health and safety directions of DOORDASH. Without limiting in any way the CONTRACTOR's general and specific obligations under Health and Safety Legislation, the CONTRACTOR will:
Ensure so far as is reasonably practicable the health and safety of any person is not put at risk by services performed under this Agreement, including Personnel, other contractors; subcontractors, merchants, customers, and members of the public.
Ensure that its Personnel have all of the necessary skills, qualifications and experience to safely perform the Contracted Services, and that the Personnel receive all appropriate health and safety and induction training specific to the services that they will be performing under this Agreement.
Ensure that it and its Personnel report all notifiable events (as defined in HSWA) to WorkSafe New Zealand in accordance with Health and Safety Legislation, and report all incidents, including near misses and notifiable events, in relation the performance of the services under this agreement, to DOORDASH immediately, including any steps taken to address such events in order to prevent them from happening again.
Provide any cooperation and assistance as may be required at DOORDASH’s discretion in relation to any incident or accident investigation (including near misses) connected to the performance of the Contracted Services. This cooperation and assistance will be provided as required in all circumstances and at no cost to DOORDASH, whether the investigation is conducted by CONTRACTOR, DOORDASH, the regulator, or any other person or body with the authority to investigate. As part of such cooperation and assistance, DOORDASH may require and CONTRACTOR must provide any and all information CONTRACTOR has that relates to the subject matter of the investigation or the investigation itself.
Notify DOORDASH of any improvement or prohibition or other notice, enforcement proceedings or prosecution under Health and Safety Legislation against CONTRACTOR in relation to the supply of services under this Agreement.
To the extent that CONTRACTOR and DOORDASH have overlapping health and safety duties in relation to the supply of services under this Agreement, CONTRACTOR agrees to consult, cooperate, and coordinate activities with DOORDASH so far as is reasonably practicable and to provide all information DOORDASH may reasonably require.
XVII. TERMINATION OF AGREEMENT
CONTRACTOR may terminate this Agreement upon seven (7) days written notice. DOORDASH may terminate this Agreement and deactivate CONTRACTOR’S Dasher account only for the reasons set forth in the DOORDASH Deactivation Policy, which CONTRACTOR expressly agrees to, or for a material breach of this Agreement. Notwithstanding the foregoing, DOORDASH reserves the right to temporarily remove access to the DOORDASH platform for the purposes of timely investigation where fraud or abuse is suspected, including circumvention of compliance with Legal Process, or when deemed necessary to protect the safety and security of DoorDash users.
Notwithstanding any other provision in this Agreement, DOORDASH reserves the right to modify the Deactivation Policy if, in DOORDASH’s good faith and reasonable discretion, it is necessary to do so for the safe and/or effective operation of the DOORDASH platform. DOORDASH shall provide notice of any such changes to CONTRACTOR via e-mail. Changes to the Deactivation Policy shall be effective and binding on the parties upon CONTRACTOR’s continued use of the DOORDASH platform following DOORDASH’s e-mail notice of such modifications. Nothing will prevent CONTRACTOR from attempting to negotiate an exemption from any modification to the Deactivation Policy.
CONTRACTOR’s and DOORDASH’s obligations and rights arising under the Mutual Arbitration Provision of this Agreement shall survive termination of this Agreement. Notwithstanding any other provision in this Agreement, the Deactivation Policy is subject to change; such changes shall be effective and binding on the parties upon DOORDASH’S provision of notice to CONTRACTOR via e-mail.
XVIII. MODIFICATION
DOORDASH may modify this Agreement at any time. When DOORDASH makes material changes to this Agreement, it will post the revised Agreement on the DOORDASH Platform and update the “Last Updated” date at the top of the Agreement. DOORDASH will also provide CONTRACTOR with notice of any material changes before the date the revised Agreement becomes effective. If CONTRACTOR disagrees with the revised Agreement, CONTRACTOR may terminate the Agreement immediately as provided herein. If CONTRACTOR does not terminate the Agreement before the date the revised Agreement becomes effective, CONTRACTOR’s continued access to or use of the DOORDASH platform will constitute acceptance of the revised Agreement. DOORDASH may modify information on any website hyperlinked from this Agreement from time to time, and such modifications shall be effective upon posting. Continued use of the DOORDASH platform after any such changes shall constitute CONTRACTOR’s consent to such changes.
XIX. ENTIRE AGREEMENT, TRANSFERABILITY, AND WAIVER
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 signed by both parties. Before accepting any modifications, alterations, changes or amendments, CONTRACTOR shall have the right to discuss any proposed changes with DOORDASH and consider whether to continue their contractual relationship with DOORDASH. This Agreement supersedes any prior contract between the parties. To the extent DOORDASH’s consumer facing Terms and Conditions Agreement (or updated consumer facing Terms and Conditions Agreement, if applicable) is inconsistent or conflicts with this Agreement, this Agreement controls. However, the decision to opt-out of the Mutual Arbitration Provision in this Agreement does not affect the enforceability of any arbitration agreement in the consumer facing Terms and Conditions Agreement to which Contractor may be bound (and vice versa). 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 DOORDASH may assign its rights and obligations under this Agreement to an affiliate of DOORDASH or any successor(s) to its business and/or purchaser of substantially all of its stock or assets. References in this Agreement to DOORDASH shall be deemed to include such successor(s).
The failure of DOORDASH or CONTRACTOR 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.
XX. THIRD PARTY SERVICES
From time to time, DOORDASH may enable CONTRACTOR to receive services from other third parties while using the DOORDASH platform. CONTRACTOR understands that these services are subject to the terms and conditions of each third-party provider. CONTRACTOR agrees that DOORDASH is not responsible and may not be held liable for these services or the actions or omissions of any third-party provider.
Google Maps: As a CONTRACTOR, while using the DOORDASH platform CONTRACTOR may be able to use Google Maps in-app navigation services while performing Contracted Services. If CONTRACTOR does so, CONTRACTOR agree that Google may collect CONTRACTOR’s location data when the DOORDASH platform is running in order to provide and improve Google’s services, that such data may also be shared with DOORDASH in order to improve its operations, and that Google’s terms and privacy policy will apply to this usage. CONTRACTOR can also use any other navigation app outside the DOORDASH platform or none at all.
XXI. MISCELLANEOUS
CAPTIONS SECTION HEADINGS: Captions and section headings 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.
SEVERABILITY Clause: Except as specifically provided in Section XII, if any part of this Agreement is declared unlawful or unenforceable, the remainder of this Agreement shall remain in full force and effect.
GOVERNING LAW: This Agreement is governed by New Zealand law. The parties submit to the non-exclusive jurisdiction of the New Zealand courts in respect of all matters relating to this Agreement.
NOTICE AND OPPORTUNITY TO CURE: CONTRACTOR agrees to notify DOORDASH in writing at https://www.doordash.com/help/ of any breach or perceived breach of this Agreement, of any claim arising out of or related to this Agreement, or of any claim that CONTRACTOR’s services or scope of work differ in any way from what is contemplated in this Agreement, including but not limited to the terms in Sections II (Contractor’s Operations) and III (Contracted Services), or if the relationship of the parties differs from the terms contemplated in Section V (Relationship of Parties).
