DRYVER LLC’s TERMS AND CONDITIONS FOR DRIVERS
INCLUDING REQUIREMENT TO ARBITRATE DISPUTES
Welcome to www.dryver.com. Dryver, LLC (“Dryver”) (formerly known as BeMyDD, LLC) owns and operates the Dryver website and the corresponding mobile applications (the “Dryver Platform” or the “Platform”).
Dryver is a referral service that provides information to individuals or entities (a “Customer”), about where, when, and from whom (a “Driver”) a Customer may obtain driving services (“Services”) and the cost for those Services. If a Customer utilize one or more of the Drivers to whom we refer that Customer, we will charge the Customer for that Driver’s Services and transmit payment to that Driver at an agreed upon rate.
By registering as a Driver on the Dryver Platform, you are agreeing to the following Terms and Conditions, which constitute a binding contract between you and Dryver (the “Agreement” or the “Terms and Conditions”). If you are registering on behalf of a legal entity, you represent and warrant that you have the authority to do so and to bind that entity to this Agreement.
1. Registering as a Driver.
1.1 To register as a Driver for Dryver, you must be at least 18 years of age (or the age of majority in the State of your residence if that is older than 18) and you must submit all of the information on the Driver Registration Form, and any additional information we may reasonably request. You will be required to provide us with a copy of your driver’s license, proof of insurance, and bank account information (for processing ACH payments to you). All information you submit must be truthful, accurate and complete. When you receive the results of your background check, you must provide a copy to Dryver at firstname.lastname@example.org.
1.2 Once you have completed the Driver registration process, which includes the submission of all required information, a successful background check, an interview, and completion of training, an online Account will be established for you on www.dryver.com. You will receive a password and name for access to your Account. You will be solely responsible for maintaining the confidentiality of your Account and its password, and you are solely responsible for any and all activities that occur on your Account. You authorize Dryver to assume that any person using your Account is you or is authorized to act for you. You must (a) immediately notify us of any unauthorized use of your password or Account or any other breach of security, and (b) ensure that you always exit from your Account at the end of each session. Dryver will not be liable for any loss or damage arising from your failure to comply with these requirements.
1.3 You authorize Dryver to communicate with you via email, sms, text, or phone calls to the email addresses and phone numbers your provide in the registration process or later update.
2. Relationship of the Parties.
2.1 As noted above, Dryver is a referral service. Dryver connects Customers with Drivers. Dryver does not provide driving services and does not employ individuals to perform such services. Your relationship with Dryver is that of a separate business accepting a referral to provide Services to a third party. Unless the law of the State in which you reside provides otherwise, you are not an employee of Dryver. You are not a, partner, representative, agent, joint venturer, independent contractor, or franchisee of Dryver.
2.2 When accepting referrals from Dryver, you will be operating as an independent business owner. Your relationship with the various Customers to whom you provide Services will be that of an independent contractor. You are responsible for exercising your own business judgment in accepting referrals. Your exercise of your own business judgment will determine whether you make a profit or loss.
2.3 When you accept a referral, you are solely responsible to determine how to fulfill your obligation to the Customer. You will decide how to travel to the geographic location at which the referral is to begin. You and the Customer are responsible to determine the method and manner by which you provide Services to the Customer. Dryver is not providing you with tools or supplies to enable you to provide any Services once you have accepted a referral. Dryver will not control or direct the performance of your Services or dictate your work locations, work hours, or terms of work.
2.4 Subject to the restrictions in this Agreement, you are free to provide services to any third parties, including other businesses that may compete with Dryver. You are free to accept or reject referrals. You will not be penalized for rejecting a referral.
2.5 Unless otherwise required by law, Dryver will not withhold any taxes, including but not limited to unemployment or employment insurance, social security, disability insurance or any other applicable federal or state withholdings, from the fees to which you are entitled as a result of providing Services to Customers. You are responsible for all tax liability associated with payments received for Services provided to Customers. Except as required by law, you are not covered by or eligible for any insurance from Dryver. You must obtain any liability, health, workers’ compensation, disability, unemployment, or other insurance needed, desired, or required by law in connection with your performance of Services. All such costs shall be your responsibility.
3.1 When Dryver receives payment for Services you have provided to a Customer, Dryver will deposit the amount of that payment, less Dryver’s fees (including 5% for credit card processing fees), to the bank account identified in the registration process, or such other bank account you later specify for the deposit of fees. Dryver’s fees are set forth on the attached Fee Schedule, as updated from time to time.
4.1 As a condition of receiving referrals from Dryver, you must have insurance in such amounts to meet your State’s minimum motor vehicle insurance. You must have a policy that covers you while you are operating a third party’s vehicle for compensation. Your personal automobile insurance policy will likely not be sufficient. You should discuss the coverage that you need with your insurance agent. Although you must provide a copy of your policy to Dryver prior to receiving referrals, it is still your responsibility to obtain the correct coverage. Dryver has no responsibility to review the policy or to confirm that the coverage satisfies your responsibility under this Agreement. You must notify Dryver immediately if your insurance is cancelled or not renewed for any reason.
4.2 You must confirm, by visual inspection, that the Customers for whom you provide Services have current automobile insurance (liability insurance and property damage insurance) coverage that covers you as the driver of the Customer’s vehicle. Dryver does not provide insurance to cover you or the Customer. If you do not have the proper insurance, and if you do not verify that the Customer has the proper insurance, you may be personally liable from the very first dollar for damages caused by the acts or omissions of you or a third party.
5. Compliance with Laws.
5.1 While providing any Services to any Customer referred to you by Dryver, you must, at all times, comply with all applicable laws, including but not limited to any posted traffic and safety laws.
6. Term and Termination.
6.1 Your Agreement with Dryver, as outlined in these Terms and Conditions, will remain in effect until this Agreement, or your Account is terminated by one of the parties in accordance with this Agreement.
6.2 Both you and Dryver may suspend or terminate your Account at any time with or without cause upon email or written notice to the other. Dryver may also immediately suspend or terminate your Account for cause and without notice if you have, as determined by Dryver in its sole discretion, (a) violated or tried to violate the legal rights of others (b) violated this Agreement or (c) engaged in conduct that may cause damage to Dryver’s reputation or business operations. The occurrence of any of the following is cause for Dryver to immediately suspend or terminate your Account: (a) your arrest or conviction for of any major traffic offense; (b) your conviction for DUI (driving under the influence), DWI (driving while intoxicated) or OVI (operating a vehicle while intoxicated) or a similar offense; (c) your operation of a motor vehicle while under the influence of any substance that causes intoxication or substantial impairment of the senses required to operate a motor vehicle; (d) the suspension or loss of your driver's license or your unrestricted driving privileges; (e) Your conviction of any felony, or any other crime involving moral turpitude; (f) the suspension or loss of your automobile insurance; (g) your involvement in any motor vehicle accident where you are found to be at fault; (h) your failure to provide full, complete and truthful statements on your driver registration form; (i) your use of a mobile device while driving, including, but not limited to, texting while driving or using an app or the internet while driving, in violation of applicable traffic laws; or, (j) your use of a Customer’s vehicle for any personal reasons, such as seeing friends or returning to your home during a reservation, etc.
7.1 By accepting referrals from Dryver, you agree to keep confidential all (a) Customer information, including but not limited to names, addresses, contact information, vehicle information, insurance information, destination information, (b) non-public information about other drivers, including names and contact information, and (c) other non-public information you learn as a result of your relationship with Dryver (collectively, “Confidential Information”). You may not use or disclose, in any manner or to any person, any Confidential Information except as necessary to provide Services to the Customer or to enable Dryver to collect the fees for such Services and to remit payment for those services to you. You may not publish or disclose any information you learn about a Customer as a result of a referral, including but not limited to, observations about the Customer that, if disclosed, would be embarrassing or damaging to the Customer in any way, or which might endanger any individual’s safety. The restrictions of this paragraph do not prevent you from making disclosures as necessary (x) to protect any individual from immediate risk of serious physical or financial harm, (y) to comply with any valid legal process or legal requirement, or (z) to comply with this Agreement. The restrictions in this paragraph will continue indefinitely and will survive the expiration or termination of your status as a Driver for Dryver. You acknowledge that a breach of the restrictions in this paragraph will cause serious and irreparable harm to both the Customer and Dryver. Dryver will be entitled to injunctive relief to enforce the restrictions of this paragraph without the need to post a bond. Dryver may also recover any and all damages it incurs as a result of a breach of the restrictions in this paragraph. You will indemnify Dryver for all damages it incurs as a result of a breach of this paragraph, including any legal fees, other litigation costs, judgments or settlements incurred in a claim brought by a Customer.
8.1 The terms and conditions to which Customers agree when they utilize the Dryver Platform to obtain referrals to Drivers prohibit those Customers from contacting you directly to obtain Services. By agreeing to these Terms and Conditions, you also agree not to offer or provide Services to any Customer except through use of the Dryver Platform. In other words, once Dryver has introduced you to a Customer, all future transactions between you and that Customer must be handled through the Dryver Platform. If a Customer contacts you directly for Services, you must decline the Customer’s request and report that Customer to Dryver. The restrictions of this paragraph will remain in effect for as long as you have an active Account and for twelve months after either you or Dryver terminate your account, regardless of the reason for the termination. A breach of the restrictions in this paragraph is a material breach of this Agreement. Dryver may terminate your Account for a breach of this paragraph. In addition, you will be liable to Dryver for all of its actual damages as a result of your breach of this paragraph, plus all costs of collection, including attorneys’ fees and other litigations costs.
9. Intellectual Property and Use of Information.
9.1 The content on the Platform, including all text, graphics, logos, button icons, images, audio clips, video clips, products, software, trademarks, copyrighted information, or any other material displayed on or contained within the Platform (collectively, the “Content”), and the collection, arrangement, and assembly of the Content, is the property of Dryver or its third-party licensors. You do not have nor does your use of the Platform give you any ownership interest in the Content. Any use of the Content that is inconsistent with the Platform’s purpose, including the reproduction, modification, distribution, transmission, republication, display, or performance, is prohibited.
9.2 You may not use the Content (a) in connection with any service or business other than Dryver, (b) in any manner that is likely to cause confusion among consumers as to the source or origin of Dryver’s services, or (c) in any manner that disparages or harms Dryver’s reputation or business. Upon termination of your Account, you must immediately destroy any Content in your possession.
9.4 Dryver respects the intellectual property of others. If you believe that Dryver has copied your work in a way that violates your rights, please provide us the information necessary to evaluate your claim and respond appropriately.
10. Advertising and Marketing.
10.1 You must have prior written approval from Dryver for any advertisements or marketing efforts you intend to publish that relate to Dryver. “Advertisement” means any informational message, whether published via radio, television, billboard, flyer, leaflet, or other physical medium; or any website, mobile application, banner ad, or other digital medium that either identifies Dryver or uses any of Dryver’s intellectual property, including copyrighted text, pictures, images or marks.
11.1 You must defend, indemnify, and hold harmless, Dryver and its officers, directors, equity holders, employees, independent contractors, telecommunication providers, and agents, from and against any and all claims, actions, loss, liabilities, expenses, costs, or demands, including without limitation legal and accounting fees, for all damages directly, indirectly, and/or consequentially resulting or allegedly resulting from your acts or omissions, or any claims brought by a Customer or third party against Dryver that arise directly or indirectly from your acts or omissions. We will promptly notify you by electronic mail of any such claim or suit and cooperate fully (at your expense) in the defense of such claim or suit. We reserve the right to participate in the defense of such claim or defense at our own expense, and choose our own legal counsel, but are not obligated to do so. This indemnification will survive any termination or expiration of this Agreement.
12. Procedure in Case of Accident or Injury.
12.1 In the event of an accident, injury, violation of law, or violation of the terms and conditions of this Agreement by any person, you must promptly notify Dryver, in writing, of the event, and provide a detailed narrative of the event or violation, including where it occurred, when it occurred, who was involved, and what damages were incurred. Notice should be sent to email@example.com no later than 48 hours after the event and preferably immediately. You must fully and timely cooperate with Dryver in any investigation of any incident you report or in which you are involved and any subsequent litigation. Cooperation may include, when relevant, release of any insurance information, medical information and/or tests, including your medical and law enforcement records, related to any incident.
12.2 Once you notify Dryver of any accident or injury to persons or property, Dryver will provide you with the information necessary to contact the Customer and the Customer’s insurance carrier. You will have the sole responsibility for pursuing any claim, should you feel that one exists, with your insurance carrier or a Customer’s insurance carrier.
13. Exclusion of Warranties and Limitation of Liability.
13.1 DRYVER IS A REFERRAL SERVICE. IT PROVIDES A PLATFORM TO CONNECT YOU WITH A CUSTOMER SO THAT YOUR CAN PROVIDE SERVICES TO THE CUSTOMER. DRYVER DOES NOT PROVIDE TRANSPORTATION SERVICES. DRYVER IS NOT A COMMON CARRIER. DRYVER DOES NOT CONTROL YOUR ACTIVITIES. DRYVER IS NOT RESPONSIBLE FOR THE YOUR ACTS OR OMISSIONS, WHETHER THEY ARE INTENTIONAL OR NEGLIGENT. BY ACCEPTING A REFERRAL, YOU ASSUME THE ENTIRE RISK ARISING OUT OF YOUR PROVISION OF SERVICES TO THE CUSTOMR TO MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.
13.2 DRYVER MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE REGARDING THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, OR AVAILABILITY OF ITS SERVICES OR THAT ITS SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.
13.3 DRYVER IS NOT LIABLE FOR ANY DAMAGES, WHETHER DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL, INCLUDING LOST PROFITS, LOST DATA, PERSONAL INJURY, OR PROPERTY DAMAGE ARISING FROM OR RELATED TO ANY USE OF ITS SERVICES, REGARDLESS OF ITS NEGLIGENCE (EITHER ACTIVE, AFFIRMATIVE, SOLE, OR CONCURRENT), EVEN IF DRYVER IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES.
13.4 DRYVER IS NOT LIABLE FOR ANY DAMAGES, WHETHER DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL, INCLUDING LOST PROFITS, LOST DATA, PERSONAL INJURY, OR PROPERTY DAMAGE ARISING FROM OR RELATED TO ANY USE OF YOUR SERVICES, INCLUDING, BUT NOT LIMITED TO, ANY DAMAGE TO A VEHICLE THAT OCCURS WHEN PARKED AS DIRECTED BY CUSTOMER OR OTHERWISE, ANY SICKNESS OR ILLNESS CONTRACTED FROM A CUSTOMER, INCLUDING ANY VIRAL INFECTION, ANY ITEMS LOST OR STOLEN, OR ANY DAMAGE THAT MAY OCCUR TO THE VEHICLE WHILE IT IS UNDER YOUR CONTROL.
13.5 SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSIONS OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
14.1 The failure of either party to enforce at any time or for any period of time any provision of this Agreement will not be construed as a waiver of such provision or of the right thereafter to enforce each and every provision of this Agreement. If any term, clause or provision contained in this Agreement is declared or held invalid by a court of competent jurisdiction, such declaration or holding will not affect the validity of any other term, clause or provision of this Agreement.
15. Dispute Resolution - Arbitration Agreement
15.1 PLEASE READ THIS SECTION CAREFULLY — IT AFFECTS YOUR LEGAL RIGHTS AND GOVERNS HOW YOU AND DRYVER CAN BRING CLAIMS COVERED BY THIS ARBITRATION AGREEMENT. THIS SECTION WILL, WITH LIMITED EXCEPTIONS, REQUIRE YOU AND DRYVER TO SUBMIT CLAIMS TO BINDING AND FINAL ARBITRATION ON AN INDIVIDUAL BASIS.
15.2 BY ENTERING INTO THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND AND AGREE, WITHOUT LIMITATION OR QUALIFICATION, TO BE BOUND BY THIS AGREEMENT AND YOU ACCEPT ALL OF ITS TERMS. THIS AGREEMENT TO ARBITRATE IS GOVERNED BY THE FEDERAL ARBITRATION ACT AND SURVIVES THE TERMINATION OF THIS AGREEMENT AND YOUR RELATIONSHIP WITH DRYVER. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU ARE AGREEING TO ARBITRATE CLAIMS RELATED TO PAYMENTS, ANY CITY, COUNTY, STATE OR FEDERAL WAGE AND HOUR LAW, COMPENSATION, MEAL OR REST BREAKS, EXPENSE REIMBURSEMENT, WRONGFUL TERMINATION, DISCRIMINATION, HARASSMENT, RETALIATION, FRAUD, DEFAMATION, TRADE SECRETS, UNFAIR COMPETITION, PERSONAL INJURY, PROPERTY DAMAGE OR LOSS, EMOTIONAL DISTRESS; BREACH OF ANY EXPRESS OR IMPLIED CONTRACT OR BREACH OF ANY EXPRESS OR IMPLIED COVENANT; CLAIMS ARISING UNDER FEDERAL OR STATE CONSUMER PROTECTION LAWS; CLAIMS ARISING UNDER ANTITRUST LAWS; CLAIMS ARISING UNDER THE TELEPHONE CONSUMER PROTECTION ACT AND FAIR CREDIT REPORTING ACT; CLAIMS ARISING UNDER THE FAIR LABOR STANDARDS ACT, CIVIL RIGHTS ACT, UNIFORM TRADE SECRETS ACT, AMERICANS WITH DISABILITIES ACT, WORKER ADJUSTMENT AND RETRAINING NOTIFICATION ACT, AGE DISCRIMINATION IN EMPLOYMENT ACT, OLDER WORKERS BENEFIT PROTECTION ACT, FAMILY MEDICAL LEAVE ACT, EMPLOYEE RETIREMENT INCOME SECURITY ACT (EXCEPT FOR INDIVIDUAL CLAIMS FOR EMPLOYEE BENEFITS UNDER ANY BENEFIT PLAN SPONSORED BY DRYVER AND COVERED BY THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OR FUNDED BY INSURANCE), AND STATE OR LOCAL STATUTES, IF ANY, ADDRESSING THE SAME OR SIMILAR SUBJECT MATTERS; AND ALL OTHER FEDERAL, STATE OR LOCAL STATUTORY AND COMMON LAW CLAIMS.
15.3 ALL DISPUTES BETWEEN YOU AND DRYVER RELATED TO THIS AGREEMENT, THE SERVICES, YOUR SERVICES, THE PLATFORM, OR ANY ADVERTISING BY DRYVER, OR THAT OTHERWISE ARISE OUT OF THE RELATIONSHIP BETWEEN YOU AND DRYVER, MUST BE RESOLVED AS FOLLOWS: IF YOU BELIEVE YOU HAVE A CLAIM AGAINST DRYVER, YOU MUST NOTIFY DRYVER OF YOUR CLAIM, AND PROVIDE DRYVER WITH ALL RELEVANT FACTS UNDERLYING YOUR CLAIM. YOU MUST ALLOW DRYVER TO HAVE 30 DAYS TO EVALUATE AND TRY TO RESOLVE YOUR CLAIM WITH YOU. YOU MUST COOPERATE WITH DRYVER’S REASONABLE REQUESTS FOR ADDITIONAL INFORMATION AND BOTH PARTIES MUST NEGOTIATE IN GOOD FAITH. IF DRYVER BELIEVES IT HAS A CLAIM AGAINST YOU, DRYVER WILL NOTIFY YOU OF THE CLAIM AND PROVIDE YOU WITH THE RELEVANT FACTS AND ANY ADDITIONAL INFORMATION YOU MAY REASONABLY REQUEST. BOTH PARTIES MUST ATTEMPT TO RESOLVE THAT CLAIM IN GOOD FAITH.
15.4 IF A PARTY’S CLAIM IS NOT RESOLVED WITHIN 30 DAYS OF THE INITIAL NOTICE, THE PARTY ASSERTING THE CLAIM CAN EITHER FILE AN ACTION IN THE SMALL CLAIMS COURT FOR THE JURISDICTION IN WHICH YOU RESIDE (PROVIDED THAT THE SUBJECT MATTER JURISDICTION OF THAT COURT DOES NOT EXCEED $10,000) OR SEEK TO HAVE THE CLAIM ARBITRATED. IF THE CLAIM IS PURSUED IN SMALL CLAIMS COURT, THE CLAIM MUST BE FULLY RESOLVED IN SMALL CLAIMS COURT. IF THE CLAIM IS PURSUED IN ARBITRATION, AND IF THE CLAIM IS NO MORE THAN $20,000, THE LOCATION OF THE ARBITRATION WILL BE IN THE COUNTY SEAT FOR THE COUNTY IN WHICH YOU RESIDE, UNLESS THE PARTIES AGREE TO A DIFFERENT LOCATION. IF THE CLAIM IS PURSUED IN ARBITRATION, AND THE CLAIM EXCEEDS $20,000, THE ARBITRATION WILL TAKE PLACE IN CLEVELAND, OHIO, UNLESS THE PARTIES AGREE TO A DIFFERENT LOCATION. NOTWITHSTANDING THE LOCATION OF THE ARBITRATION, THIS AGREEMENT WILL BE INTERPRETED BY OHIO LAW, WITHOUT REGARD TO ITS CONFLICT OF LAWS RULES.
15.5 IF THERE IS A DISPUTE ABOUT THE ARBITRABILITY OF ANY CLAIM (INCLUDING ABOUT THE FORMATION, SCOPE, APPLICABILITY, INTERPRETATION, VALIDITY, AND ENFORCEABILITY OF THIS AGREEMENT TO ARBITRATE), THAT THRESHOLD DISPUTE SHALL BE RESOLVED BY THE ARBITRATOR, EXCEPT AS EXPRESSLY PROVIDED BELOW.
15.6 YOU ACKNOWLEDGE AND UNDERSTAND THAT YOU AND DRYVER ARE WAIVING THE RIGHT TO SUE IN COURT OR HAVE A JURY TRIAL FOR ALL DISPUTES AND CLAIMS, UNLESS EXPRESSLY EXCLUDED IN THIS ARBITRATION AGREEMENT. THIS ARBITRATION AGREEMENT IS INTENDED TO REQUIRE ARBITRATION OF EVERY CLAIM OR DISPUTE THAT CAN LAWFULLY BE ARBITRATED, EXCEPT THOSE CLAIMS AND DISPUTES THAT, BY THE TERMS OF THIS ARBITRATION AGREEMENT, ARE EXPRESSLY EXCLUDED FROM THE REQUIREMENT TO ARBITRATE.
15.7 IF YOU PROVIDE US WITH A SIGNED AND NOTARIZED AFFIDAVIT THAT YOU CANNOT PAY THE FILING FEE FOR A CLAIM YOU WANT TO PURSUE, DRYVER WILL PAY THE FEE DIRECTLY TO THE AAA, PROVIDED THAT THE FILING FEE DOES NOT EXCEED $5,000. THE ARBITRATOR MAY AWARD FILING AND ADMINISTRATIVE FEES TO THE PREVAILING PARTY, BUT EACH PARTY WILL BEAR ITS OWN LEGAL FEES.
15.8 ALL ARBITRATIONS WILL BE HEARD BY A SINGLE ARBITRATOR SELECTED IN ACCORDANCE WITH THE RULES OF THE AMERICAN ARBITRATION ASSOCIATION (“AAA”) AND CONDUCTED IN ACCORDANCE WITH THE AAA’S COMMERCIAL ARBITRATION RULES. THE RULING BY THE ARBITRATOR WILL BE FINAL AND BINDING AND MAY BE ENFORCED IN ANY COURT OF COMPETENT JURISDICTION. THE ARBITRATOR MAY PERMIT THE PARTIES TO ENGAGE IN LIMITED AND DISCOVERY OF NON-PRIVILEGED INFORMATION THAT IS RELEVANT TO THE CLAIM(S). THE ARBITRATOR MAY AWARD ANY INDIVIDUALIZED REMEDIES THAT WOULD BE AVAILABLE IN COURT; PROVIDED, HOWEVER, THAT THE ARBITRATOR MAY NOT AWARD ANY PUNITIVE, CONSEQUENTIAL OR INCIDENTAL DAMAGES. THE ARBITRATOR MAY AWARD DECLARATORY OR INJUNCTIVE RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF WARRANTED BY THAT PARTY’S INDIVIDUAL CLAIMS. THE ARBITRATOR WILL PROVIDE A REASONED WRITTEN STATEMENT OF THE ARBITRATOR’S DECISION, WHICH SHALL EXPLAIN THE AWARD GIVEN AND THE FINDINGS AND CONCLUSIONS ON WHICH THE DECISION IS BASED.
15.9 THE ARBITRATOR WILL DECIDE THE SUBSTANCE OF ALL CLAIMS IN ACCORDANCE WITH APPLICABLE LAW, AND WILL HONOR ALL CLAIMS OF PRIVILEGE RECOGNIZED BY LAW.
15.10 NEITHER PARTY MAY PURSUE ANY CLASS OR COLLECTIVE ARBITRATIONS EVEN IF PERMITTED BY THE AAA PROCEDURES OR RULES. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, THE ARBITRATOR MAY AWARD MONEY OR INJUNCTIVE RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF WARRANTED BY THAT PARTY’S INDIVIDUAL CLAIM. NO CLASS OR REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL THEORIES OF LIABILITY OR PRAYERS FOR RELIEF MAY BE MAINTAINED IN ANY ARBITRATION HELD UNDER THIS AGREEMENT. ANY QUESTION REGARDING THE ENFORCEABILITY OR INTERPRETATION OF THIS PARAGRAPH SHALL BE DECIDED BY A COURT AND NOT THE ARBITRATOR. IF FOR SOME REASON THE PROHIBITION ON CLASS ARBITRATIONS SET FORTH IN THIS AGREEMENT ARE NOT ENFORCED, THEN THE AGREEMENT TO ARBITRATE WILL NOT APPLY.
15.11 REPRESENTATIVE PAGA WAIVER: NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, THE ARBITRATION AGREEMENT OR THE AAA RULES, TO THE FULLEST EXTENT ALLOWED BY LAW: (1) YOU AND DRYVER AGREE NOT TO BRING A REPRESENTATIVE ACTION ON BEHALF OF OTHERS UNDER THE CALIFORNIA PRIVATE ATTORNEYS GENERAL ACT ( “PAGA” ), CALIFORNIA LABOR CODE § 2698 ET SEQ., IN ANY COURT OR IN ARBITRATION, AND (2) FOR ANY CLAIM BROUGHT ON A PRIVATE ATTORNEY GENERAL BASIS, INCLUDING UNDER PAGA, BOTH YOU AND DRYVER AGREE THAT ANY SUCH CLAIM SHALL BE RESOLVED IN ARBITRATION ON AN INDIVIDUAL BASIS ONLY (I.E., TO RESOLVE WHETHER YOU HAVE PERSONALLY BEEN AGGRIEVED OR SUBJECT TO ANY VIOLATIONS OF LAW), AND THAT SUCH AN ACTION MAY NOT BE USED TO RESOLVE THE CLAIMS OR RIGHTS OF OTHER INDIVIDUALS IN A SINGLE OR COLLECTIVE PROCEEDING (I.E., TO RESOLVE WHETHER OTHER INDIVIDUALS HAVE BEEN AGGRIEVED OR SUBJECT TO ANY VIOLATIONS OF LAW) (COLLECTIVELY, “REPRESENTATIVE PAGA WAIVER” ).
15.12 NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, THE ARBITRATION AGREEMENT OR THE AAA RULES, DISPUTES REGARDING THE SCOPE, APPLICABILITY, ENFORCEABILITY, REVOCABILITY, OR VALIDITY OF THIS REPRESENTATIVE PAGA WAIVER MAY BE RESOLVED ONLY BY A CIVIL COURT OF COMPETENT JURISDICTION AND NOT BY AN ARBITRATOR. IF ANY PROVISION OF THIS REPRESENTATIVE PAGA WAIVER IS FOUND TO BE UNENFORCEABLE OR UNLAWFUL FOR ANY REASON: (I) THE UNENFORCEABLE PROVISION SHALL BE SEVERED FROM THIS AGREEMENT; (II) SEVERANCE OF THE UNENFORCEABLE PROVISION SHALL HAVE NO IMPACT WHATSOEVER ON THE ARBITRATION AGREEMENT OR THE REQUIREMENT THAT ANY REMAINING CLAIMS BE ARBITRATED ON AN INDIVIDUAL BASIS PURSUANT TO THE ARBITRATION AGREEMENT; AND (III) ANY SUCH REPRESENTATIVE PAGA OR OTHER REPRESENTATIVE PRIVATE ATTORNEYS GENERAL ACT CLAIMS MUST BE LITIGATED IN A CIVIL COURT OF COMPETENT JURISDICTION AND NOT IN ARBITRATION. TO THE EXTENT THAT THERE ARE ANY CLAIMS TO BE LITIGATED IN A CIVIL COURT OF COMPETENT JURISDICTION BECAUSE A CIVIL COURT OF COMPETENT JURISDICTION DETERMINES THAT THE REPRESENTATIVE PAGA WAIVER IS UNENFORCEABLE WITH RESPECT TO THOSE CLAIMS, THE PARTIES AGREE THAT COURT LITIGATION OF THOSE CLAIMS SHALL BE STAYED PENDING THE OUTCOME OF ANY INDIVIDUAL CLAIMS IN ARBITRATION.
15.13 You are not required to arbitrate claims for workers’ compensation, disability insurance and unemployment insurance benefits.
15.14 Either party may seek a temporary restraining order and a preliminary injunction in civil court to prevent an actual or threatened infringement or misappropriate of that party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights.
15.15 Nothing in this Arbitration Agreement prevents you from making a report to or filing a claim or charge with the Equal Employment Opportunity Commission, U.S. Department of Labor, Securities Exchange Commission, National Labor Relations Board, or Office of Federal Contract Compliance Programs, or a similar local, state or federal agency, and nothing in this Arbitration Agreement shall be deemed to preclude or excuse a party from bringing an administrative claim before any agency to fulfill the party’s obligation to exhaust administrative remedies before making a claim in arbitration. This Agreement and Arbitration Agreement do not prevent you from participating in an investigation by a government agency of any report, claim or charge otherwise covered by this Arbitration Agreement and do not prevent you from receiving an award for information provided to any government agencies.
15.16 In addition to the general severability provisions in this Agreement, if any portion of this Arbitration Agreement is deemed illegal or unenforceable under applicable law not preempted by the FAA, such provision shall be severed and the remainder of the Arbitration Agreement shall be given full force and effect.
15.17 You may opt out of the requirement to arbitrate if you have not previously agreed to an arbitration provision in Dryver’s Terms of Service where you had the opportunity to opt out of the requirement to arbitrate. If you have previously agreed to such an arbitration provision, you may opt out of any revisions to your prior arbitration agreement made by this version of the arbitration agreement in the manner specified below, but opting out of this arbitration agreement has no effect on any previous, other, or future arbitration agreements that you may have with Dryver.
15.18 Except as specified in this arbitration agreement, you may opt out of the Arbitration Agreement by notifying Dryver in writing within 30 days of your agreement to these Terms of Service. To opt out, you must send a signed written notification to firstname.lastname@example.org, that includes (a) your account username, (b) your name, (c) your address, (d) your telephone number, (e) your email address, and (f) a clear statement indicating that you wish to opt out of the Arbitration Agreement.
15.19 If you are a member of a putative class in a wage and hour class action lawsuit against Dryver that is pending as of the effective date of these Terms of Service (a “Pending Class Action”), then this Arbitration Agreement shall not apply to your claims in that particular class action. Instead, your claims in that Pending Class Action shall continue to be governed by the arbitration provisions contained in the applicable Agreement that you accepted prior to this Agreement’s effective date.
16.1 If any part of this Agreement is invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions will not in any way be affected or impaired. Our failure or delay in enforcing any provision of this Agreement at any time does not waive our right to enforce the same or any other provision in the future.
17.1 All notices to Dryver must be sent to email@example.com. All notices to you will be sent to the most recent email address we have on file for you.
18. Force Majeure.
18.1 Dryver will not be responsible for any failure to perform due to unforeseen circumstances or to causes beyond our reasonable control, including but not limited to: acts of God, such as fire, flood, earthquakes, hurricanes, tropical storms or other natural disasters; epidemics, pandemics, war, riot, arson, embargoes, acts of civil or military authority, or terrorism; fiber cuts; strikes, or shortages in facilities, fuel, energy, labor or materials; failure of the telecommunications or information services infrastructure; hacking, SPAM, or any failure of a computer, server, or software, for so long as such event continues to delay our performance.
19.1 Dryver may amend this Agreement by posting revised Terms and Conditions on its website. Dryver will notify all drivers via email that it has posted new Terms and Conditions. If you do not want to agree to those new Terms and Conditions, you may notify Dryver to terminate your account effective on the date that the new Terms and Conditions are to take effect. Your acceptance of any Customer referrals after the effective date of the new Terms and Conditions will signify your acceptance of and agreement to those new Terms and Conditions.
19.2 Dryver may change, suspend or discontinue any feature, aspect, or service available through Dryver.com at any time.
20. Choice of Law; Venue.
20.1 The exclusive venue of any claim you bring against Dryver that is not resolved through arbitration or in small claims court with a jurisdiction of less than $10,000 will be in the State or Federal Courts located in Cleveland, Ohio. This Agreement is governed by Ohio law, without regard to its conflict of law principles.
21. Entire Agreement.
21.1 This Agreement constitutes the entire agreement between both parties, and supersedes all prior oral or written promises and contracts regarding your relationship with Dryver.