Terms and Conditions
NINJA DELIVERY SERVICE TERMS AND CONDITIONS
These terms of service constitute a legally binding agreement (the “Agreement”) between you and Ninja Delivery Inc. (“Ninja,” “we,” “us” or “our”) governing your use of the Ninja application, website, and technology platform (collectively, the “Ninja Platform”).
The Ninja Platform
The Ninja Platform provides a marketplace where persons, businesses and other entities, who seek delivery services to certain destinations and locations (“Requestor”) can be matched with persons driving to or through those destinations (“Driver”). Drivers and Requestors are collectively referred to herein as “Users,” and each User shall create a User account that enables access to the Ninja Platform. For purposes of this Agreement, the driving services provided by Driver to Requestor that are matched through the Platform shall be referred to collectively as the “NinjaServices”. Any decision by a User to offer or accept NinjaServices is a decision made in such User’s sole discretion. Each delivery NinjaService provided by a Driver to a Requestor shall constitute a separate agreement between such persons.
Modification to the Agreement
In the event Ninjamodifies the terms and conditions of this Agreement, such modifications shall be binding on you only upon your acceptance of the modified Agreement.Ninja reserves the right to modify any information referenced in the hyperlinks from this Agreement from time to time, and such modifications shall become effective upon posting. Continued use of the NinjaPlatform or NinjaServices after any such changes shall constitute your consent to such changes. Unless material changes are made to the arbitration provisions herein, you agree that modification of this Agreement does not create a renewed opportunity to opt out of arbitration (if applicable).
A.TERM, TERMINATION AND SUSPENSION
This Agreement shall commence on the date this Agreement is accepted, for an indefinite period of time, unless terminated by either party, by written notice of seven (7) calendar days. Ninja may terminate this Agreement automatically, without any notice requirement, at such moment when Ninja and/or its Driver no longer qualifies, under the applicable law or the quality standards of Ninja, to provide the Ninja Service or to operate the Vehicle.
Each party may terminate this Agreement or suspend the Agreement in respect of the other party, with immediate effect and without a notice of default being required in case of:
(a) a material breach by the other party of any term of the Agreement (including but not limited to breach of representations or receipt of a significant number of User complaints); or
(b) insolvency or bankruptcy of the other party, or upon the other party’s filing or submission of request for suspension of payment (or similar action or event) against the terminating party.
Upon termination of the Agreement, the Driver and/or any affiliates shall promptly return all Devices and all Data provided to either of them by Ninja without withholding a copy thereof.
C. RATE OF PAY
If you are a DRIVER, you will receive payment for your provision of the Ninja Services. All delivery fee payments are subject to Ninja commission, discussed below. You will receive any tips provided by the Requestor to you, and tips will not be subject to any Ninja commission. Ninja will process all payments due to you. You acknowledge and agree that such amounts shall not include any interest and will be net of any amounts that Ninja is required to withhold by law.
In exchange for permitting you to offer your services through the Ninja Platform and marketplace as a Driver, you agree to pay Ninja, and permit Ninja to retain, a 20% fee based on each transaction in which you provide Ninja Services (the “Commission”). The amount of commission will be communicated to you in a Commission schedule through the Driver portal. Ninja reserves the right to change the commission at any time in its discretion based on local market factors, and Ninja will provide you with notice in the event of such change. Your continued use of the Ninja Platform after such change in the Commission calculation shall constitute your consent to such change.
You expressly authorize Ninja to set the prices on your behalf for all Charges that apply to the provision of Services. Ninja reserves the right to change the prices for all Charges that apply to the provision of Services. Ninja will provide notice in the event of such change.
Ninja reserves the right to adjust or withhold all or portion of the payment to the Driver after it reduces its Commission if it believes that (1) the Driver has attempted to defraud or abuse Ninja or Ninja’s payment system, (ii) in order to resolve a Requestor complaint (e.g., you took an inefficient route or failed to properly deliver the picked up item to its final destination) Ninja’s decision to adjust or withhold the payment to Driver in any way shall be exercised in a reasonable manner.
Regular Order – sedan base fee $5.00 $1.25 per mile $0.20 cents per minute
Express Orders – (Businesses only) base fee $5.00 up to 2 miles. Above 2 miles add $1.50 each mile.
Driver keeps 100% of the tips.
Method of payment to Driver is direct deposit on Wednesdays.
Billing cycle are Monday 12am to Sunday 12am.
D. DRIVER RESPONSIBILITIES, DUTIES, AND OBLIGATIONS
The Ninja Platform may only be used by individuals who can form legally binding contracts under applicable law. The Ninja Platform is not available to children (persons under the age of 18) or Users who have had their User account temporarily or permanently deactivated. By becoming a User, you represent and warrant that you are at least 18 years old and that you have the right, authority and capacity to enter into and abide by the terms and conditions of this Agreement. You may not allow other persons to use your User account, and you agree that you are the sole authorized user of your account. Driver must meet and have the following:
- Must be 18 years of age or older.
- Must have at least 1 years driving experience.
- Able to lift at least 30lbs.
- In-state car insurance in your name.
- In-state car registration. It does not need to be in your name.
- In-state Driver’s License.
- Social Security number.
- No DUI or drug-related offenses.
- No incidents of driving without insurance or license.
- No fatal accidents
- No history of reckless driving.
- No criminal history.
- The background check is for the past 7 years and done through TLO. It will take 3 to 10 business days.
You must have a vehicle that meets the following requirements.
- Year 2001* or newer.
- In-state plates.
- No marked, taxi vehicles.
2. Driver agrees to be responsible for Driver’s worker’s compensation, taxes, unemployment insurance, social security, health insurance and other benefits for himself and his employees, and indemnify, defend and hold harmless Ninja therefrom and from any consequences of Driver’s failure to provide same for Driver and his/her/its employees, and or himself, his heirs, administrators, personal representatives, and all other persons claiming by or through him. Driver hereby unconditionally waives, releases and forever relinquishes any and all claims, rights or demands of any nature whatsoever against Ninja arising out of any unemployment, worker’s compensation or other statute or system which could in any way derive from or arise out of Driver’s performance of any work hereunder.
3. Driver agrees to provide a certificate of insurance showing Ninja as additional insured with the following conditions and terms thereon:
i) Liability coverage must be in accordance with the limits as set by Ninja;
ii) Worker’s compensation, if required by law, must be shown on certificate of insurance;
iii) All coverage must show an expiration date;
iv) Insurance company must notify NINJA within ten (10) days before cancellation of policy;
v) Any lapse in coverage will result in delay of payment for work rendered under this Agreement.
4. If insurance expires or is canceled, Driver must provide proof of reinstatement to Ninja before resuming the provision of services under this Agreement, or before any monies are released by Ninja to Driver.
4. Driver must show proof and maintain proof that he/she has a valid driver’s license and is authorized to operate the Vehicle, has all the appropriate licenses, approvals and authority to provide transportation for hire to third parties in the City where the Ninja Service is rendered or performed.Any and all governing transportation or other laws and requirements are Driver’s responsibility and must be fully complied with.
5. Driver has the requisite and up-to-date level of expertise and experience to enable and provide the NinjaService that will be supplied, provided and supported by appropriately qualified and trained Driver acting with due skill, care and diligence.
6. Driver must show and maintain a valid policy of insurance for the appropriate (transportation, personal injury, third party or general) liability insurance and such other insurances as are considered market practice (all in industry-standard coverage amounts) for the operation of the Vehicle and/or business insurance to cover any anticipated risks, damages and losses related to the operation of the Ninja Service hereunder and not less than the minimum coverage amounts required by applicable law per the terms and conditions of ¶3of this Agreement.
7. Driver warrants and promises that Driver’s vehicle is kept in a clean condition at all times, such vehicle is in good operating condition and meets the industry safety standards for a vehicle of its kind.
8. Driver warrants and promises that Driver and the Vehicle maintain at all times the star rating quality.
9.Driver warrants and represents that Driver is the owner or lessee, or are otherwise in lawful possession of a Vehicle or Vehicles, and said Vehicle or Vehicles are suitable for performing the commercial carriage services contemplated by this Agreement, which equipment complies with all applicable federal, state and local laws.
11. All vehicle(s) must pass Ninja’s vehicle inspection prior to being used for the Ninja Service.
12. Driver acknowledges and agrees that the use or possession of firearms while working through Ninja is prohibited and is grounds for termination of this Agreement.
13. Driver acknowledges and agrees that it is neither an employee nor an authorized agent and/or representative of Ninja and as such has no authority to bind NINJA and undertakes not to hold itself out and to ensure that the IC does not hold himself or herself out, as an employee, agent or authorized representative of Ninja.
14. Driver acknowledges, agrees and understands that in order to obtain access to the service and software provided by Ninja, Driver will be required to submit to a criminal background check, drug test and/or motor vehicle report background search, the result(s) of which must be provided to Ninja prior to Driver’s access to the service pursuant to this Agreement, and/or provide proof of authority to operate a motor vehicle to provide the services under this Agreement. Driver hereby authorize Ninja Delivery and its designated agents and representatives to conduct a comprehensive review of the driver background causing a consumer report and/or an investigative consumer report to be generated for employment and/or volunteer purposes. Driver understands that the scope of the consumer report/ investigative consumer report may include, but is not limited to the following areas: verification of social security number; credit reports, current and previous residences; employment history, education background, character references; drug testing, civil and criminal history records from any criminal justice agency in any or all federal, state, county jurisdictions; driving records, birth records, and any other public records.
15. In the event of any accident or injury involving Driver while operating under the terms of this Agreement, Driver must report the incident immediately to Ninja. When reporting an incident Driver must have date, time, location, customer, and if possible a photograph of damage. When reporting lost time, Driver must have job location, customer, date, and furnish an explanation of why time was lost. Driver acknowledges, agrees and understands that Ninja is not responsible for any damages incurred and/or sustained by Driveras a result of the occurrence of an incident while operating under the terms of this Agreement.
16. Except as otherwise required by law, Driver agrees to indemnify and hold harmless Ninja and its Users against any and all liability, including attorneys’ fees and other legal expenses, asserted against Ninja or its Users arising directly or indirectly from Driver’s failure to comply with the provisions of the Software License and Online Services Agreement and this Agreement, exercise legally required due care in the performance of the services contemplated by this Agreement, or comply with all applicable laws, rules, ordinances and other legal requirements (including those relating to the Driver’s ownership, maintenance, operation and/or preparation of the equipment used to perform services under this Agreement).
17. Driver understands and agrees that Ninja reserves the right to immediately deactivate Driver’s access to the Software and Service, including but not limited to, the following:
i) Driver’s refusal to fully complete a Ninja Service after acceptance of a service request, as described in the Software License and Online Services Agreement, without waiver by the User or Ninja;
ii) A major driving violation, such as a citation for reckless driving, while transporting an item provided by the User;
iii) Violation of the Intellectual Property Ownership provision of the Software License and Online Services Agreement;
iv) Driver’s refusal to reimburse a User or Ninja for any damage or injury caused by Driver.
v) Driver’s failure to maintain all license, permits, and insurance coverage required by law and/or this Agreement and/or the Software License and Online Services Agreement.
vi) Intentional misrepresentations by Driver to a User or Ninja.
18. Driverunderstands that his/her access to the software and service are in no way intended to create an employer-employee relationship betweenNinja and Driver for any purpose. Driver represents that he/she specifically desires to operate as an independent contractor with respect to the transportation services performed under this Agreement.
19. Driver agrees to be responsible for all attorney’s fees and costs incurred by Ninjaas a consequence ofDriver’s non-performance or violation of any of the provisions of this agreement, including without limitation those fees and costs incurred in connection with legal action taken to compel performance or recover damages from Driver, or in connection with legal action taken between Ninja and any third party as result of Driver’s acts or omissions.
20. Driver agrees to indemnify and hold harmless Ninja against any and all claims filed by its Users(s) for loss, damages toobjects after acceptance by Driver from Requestor for delivery and the performance of the Ninja Services contemplated hereunder. Furthermore, Driver agrees to indemnify and hold harmless NINJA against any and all liability, including attorneys’ fees and other legal expenses, asserted against NINJA by Requester and/or its Users arising directly or indirectly from Driver’s failure to comply with the provisions of the Software License and Online Services Agreement and this Agreement, exercise legally required due care in the performance of the services contemplated by this Agreement, or comply with all applicable laws, rules, ordinances and other legal requirements (including those relating to the Driver’s ownership, maintenance, operation and/or preparation of the equipment used to perform services under this Agreement).
21. Ninja Drivers acknowledge that they could be held liable if they deliver alcohol to a minor or someone who is visibly intoxicated, so it’s important that they follow this process fully to protect themselves and other Users. Ninja Drivers have to be 21 years of age or older to accept alcohol or tobacco delivery requests.
21.1 AGE AND ID VERIFICATION
When an order contains alcohol, the law requires Ninja Drivers to verify the age of the customer before they hand over the alcohol. They can only deliver alcohol if the recipient is 21 years of age or older.
To verify age, Ninja Drivers have to ask the customer for a valid ID (A valid driver’s license issued by federal, state, county, or municipal government, a valid passport, an identification card issued by the Armed Forces of the United States that contains the name, date of birth, description, and picture of the person) and scan it on the app.
E. NINJA RESPONSIBILITIES, DUTIES, AND OBLIGATIONS
1. Ninja may not use the Software and Ninja Service to: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Software or Service or the data contained therein; or (v) attempt to gain unauthorized access to the Software or Service or its related systems or networks.
2. Ninjarepresents the following for the term of this Agreement:
(i) That Ninja holds, complies and shall continue to hold and comply with all permits, licenses and other governmental authorizations necessary for conducting, carrying out and continuing their activities, operations and business in general and the Driving Service in particular;and
(ii) That Ninjashall comply with all local laws and regulations, including the laws related to the operation of a delivery, driving service and will be solely responsible for any violations of such local laws and regulations.
3.Ninja acknowledges and agrees that the Software or the Ninja Service may, from time to time, be unavailable (e.g. due to scheduled maintenance or system upgrades) and that Ninja cannot, and does not, guarantee a specific or minimum availability of the Software or the Ninja Service.
4. Ninja (and its Affiliated Companies and valid licensors, where applicable) shall own and have all rights (including Intellectual Property Rights) in and to the Device, the Software, the Ninja Service, the Driver ID and the Data. Insofar Ninja and/or Driver may, by operation of applicable law or otherwise, obtain any rights (including Intellectual Property Rights) in relation thereto, these rights shall be and are hereby transferred (insofar permitted under the applicable law, in advance) to Ninja (rights obtained by any Driver should be transferred via Ninja). Where a transfer may not be permissible under the applicable mandatory law, Ninja hereby undertakes to grant and to procure from the Driver a grant to NINJA of a perpetual, exclusive (exclusive also with regard toNinja and/or Driver), world-wide and transferable right and license under any such non-transferable rights.
5.Driver understands and agrees that Ninja reserves the right to immediately deactivate Driver’s access to the Software and Service, including but not limited to, the following:
a) Driver’s refusal to fully complete a Ninja Service after acceptance of a service request, as described in the Software License and Online Services Agreement, without waiver by the Requester orNinja;
b) A major driving violation, such as a citation for reckless driving, while transporting an item provided by the User;
c) Violation of the Intellectual Property Ownership provision of the Software License and Online Services Agreement;
d) Drivers’ refusal to reimburse a Requestor or Ninja for any damage or injury caused by Driver;
e) Driver’s failure to maintain all license, permits, and insurance coverage required by law and/or this Agreement and/or the Software License and Online Services Agreement;
f) Intentional misrepresentations by Driver to a Requester or Ninja.
6. In the event thatNinja is determined to be liable under this Agreement to Driver and/or Requester, Ninja’s damages are limited to $500.00 in the aggregate. In no event shall Ninja and/or its licensors be liable to anyone for any indirect, punitive, special, exemplary, incidental, consequential or other damages of any type or kind (including personal injury, loss of data, revenue, profits, use or other economic advantage). Ninja and/or its licensors shall not be liable for any loss, damage or injury which may be incurred by IC, including but not limited to loss, damage or injury arising out of, or in any way connected with the Ninja Service or software, including but not limited to the use or INABILITY TO USE THE NINJA SERVICE.
7.The services that Driver provides pursuant this Agreement are fully and entirely Driver’s responsibility. Ninja does not screen or otherwise evaluate potential Requestor of Driver’s services. Driver understands, therefore, that by using the Software and the Ninja Service, Driver may be introduced to third parties that may be potentially dangerous, and that Driver use the Software and the Ninja Service at Driver’s own risk.
8.NINJA makes no guarantees, warranties, or representations as to the actions or conduct of any Users who may request services from NINJA or the Driver. Responsibility for the decisions NINJA makes regarding services offered via the Software or NINJA Service (with all its implications) rests solely with IC. NINJA agrees that it is IC’s responsibility to take reasonable precautions in all actions and interactions with any third-party Driver interacts with through the NINJA Service.
9. Ninja shall carry no worker’s compensation insurance, or any health or accident insurance to cover Driver, or any of his employees. Ninja shall not pay any contribution to social security, unemployment insurance, federal or state withholding taxes, nor provide any other contributions, which might be expected in an employer-employee relationship. Driver agrees to report and pay any necessary amounts for worker’s compensation, taxes, unemployment insurance, social security, health insurance and other benefits for himself and his employees, and indemnify, defend and hold harmless Ninja therefrom, and from any consequences of Driver’s failure to provide same for Driver and his employees, for himself, his heirs, administrators, personal representatives, and all other persons claiming by or through him, hereby unconditionally waives, releases and forever relinquishes any and all claims, rights or demands of any nature whatsoever against Ninja arising out of any unemployment, worker’s compensation or other statute or system which could in any way derive from or arise out of Driver’s performance of any work hereunder.
10. Ninja provides, and Driver accepts, the Ninja Service, the Device and Driver App on an “as is” and “as available” basis. Ninja does not warrant or guarantee that Ninja, the Driver or the Requester’s access to or use of the Ninja Service, the Website, the Device, the App or the Driver App will be uninterrupted or error free.
11. Ninja’s service and software may be subject to limitations, delays, and other problems inherent in the use of the Internet and electronic communications. Ninja is not responsible for any delays, delivery failures, or other damage resulting from such problems.
12.Ninja reserves the right to modify the terms and conditions of this Agreement or at any time, effective upon publishing an updated version of this Agreement.
13.Ninja hereby expressly acknowledges and agrees that, by using or receiving the Ninja Service, and downloading, installing or using the Software, Ninja and Driver are bound by any future amendments and additions to this Agreement or documents incorporated herein, including the Fee schedule. Continued use of the Ninja Service or Software after any such changes shall constitute IC’s consent to such changes. Ninja is responsible for regularly reviewing this Agreement.
F. CONCLUDING TERMS
1. ASSIGNMENT – Driver is not permitted to (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Ninja Service, the Software, or the Device in any way; (ii) modify or make derivative works based upon the Ninja Service or the Software; (iii) create Internet “links” to the Ninja Service or Software or “frame” or “mirror” any Software on any other server or wireless or Internet-based device; (iv) reverse engineer, decompile, modify, or disassemble, except as allowed under the applicable law; (v) access the Software in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Ninja Service or Software, or (c) copy any ideas, features, functions or graphics of the Ninja Service or Software; or (vi) launch an automated program or script, including, but not limited to, web spiders, web crawlers, web robots, web ants, web indexers, bots, viruses or worms, or any program which may make multiple server requests per second, or unduly burdens or hinders the operation and/or performance of the Ninja Service or Software. neither party shall be entitled to assign, transfer, encumber any of its rights and/or the obligations under this agreement without the prior written consent of the other party, provided thatNinja may assign, transfer, encumber any of its rights and/or the obligations under this agreement (in whole or in part or from time to time) to an affiliated company or in the event of a merger or sale of assets without the prior written consent of Ninja.
2. GOVERNING LAW – The laws of the State of California shall be exclusively applicable to the terms and conditions of this Agreement, and to any and all disputes arising between Ninja and Driver pursuant to this Agreement.
3. ARBITRATION – This Arbitration Provision is governed by the Arbitration laws applicable under the State of California. This Arbitration Provision applies to any dispute arising out of or related to this Agreement or termination of the Agreement and survives after the Agreement terminates. Nothing contained in this Arbitration Provision shall be construed to prevent or excuse Driver from utilizing any procedure for resolution of complaints established in this Agreement (if any), and this Arbitration Provision is not intended to be a substitute for the utilization of such procedures.
Except as it otherwise provides, this Arbitration Provision is intended to apply to the resolution of disputes that otherwise would be resolved in a court of law or before a forum other than arbitration. This Arbitration Provision requires all such disputes to be resolved only by an arbitrator through final and binding arbitration and not by way of court or jury trial.
The Arbitrator shall be selected by mutual agreement of NINJA and Driver. Unless Driver and Ninja mutually agree otherwise, the Arbitrator shall be an attorney licensed to practice in the location where the arbitration proceeding will be conducted or a retired state judicial officer who presided in the jurisdiction where the arbitration will be conducted. If the Parties cannot agree on an Arbitrator, then an arbitrator will be selected using the alternate strike method from a list of five (5) neutral arbitrators provided by JAMS (Judicial Arbitration & Mediation Services). IC will have the option of making the first strike. If a JAMS arbitrator is used, then the applicable JAMS rules will apply. The location of the arbitration proceeding shall be no more than 45 miles from the place where IC last provided transportation services under this Agreement, unless each party to the arbitration agrees in writing otherwise.
All claims in arbitration are subject to the same statutes of limitation that would apply in court. The party bringing the claim must demand arbitration in writing and deliver the written demand by hand or first class mail to the other party within the applicable statute of limitations period. The demand for arbitration shall include identification of the Parties, a statement of the legal and factual basis of the claim(s), and a specification of the remedy sought. Any demand for arbitration made to Ninja shall be provided to General Counsel of Ninja.
The arbitrator shall resolve all disputes regarding the timeliness or propriety of the demand for arbitration. A party may apply to a court of competent jurisdiction for temporary or preliminary injunctive relief in connection with an arbitrable controversy, but only upon the ground that the award to which that party may be entitled may be rendered ineffectual without such provisional relief.
In arbitration, the Parties will have the right to conduct adequate civil discovery, bring dispositive motions, and present witnesses and evidence as needed to present their cases and defenses, and any disputes in this regard shall be resolved by the Arbitrator.
Driver and Ninja agree to bring any dispute in arbitration on an individual basis only, and not on a class, collective, or private attorney general representative action basis.
Each party will bear their own attorney’s fees and costs related to the Arbitration. However, the prevailing party to the Arbitration shall be entitled to attorney’s fees and costs with reference to the merits of the case/claim.
The Arbitrator will issue a decision or award in writing, stating the essential findings of fact and conclusions of law. Except as may be permitted or required by law, as determined by the Arbitrator, neither a party nor an Arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of all Parties. A court of competent jurisdiction shall have the authority to enter a judgment upon the award made pursuant to the arbitration. The Arbitrator shall not have the power to commit errors of law or legal reasoning, and the award may be vacated or corrected on appeal to a court of competent jurisdiction for any such error.
Arbitration is not a mandatory condition of Driver’s contractual relationship with NINJA. If Driver do not want to be subject to this Arbitration Provision, Driver may opt out of this Arbitration Provision by notifying Ninja in writing of Driver’s desire to opt out of this Arbitration Provision, which writing must be dated, signed and delivered by a nationally recognized overnight delivery service or by hand delivery to Ninja’s office addressed to the attention of the General Counsel. In order to be effective, the writing must clearly indicate Driver’s intent to opt out of this Arbitration Provision and the envelope containing the signed writing must be post-marked within 30 days of the date this Agreement is executed by Driver. Driver’s writing opting out of this Arbitration Provision will be filed with a copy of this Agreement and maintained by Ninja. Should Driver not opt out of this Arbitration Provision within the 30-day period, Driver and Ninja shall be bound by the terms of this Arbitration Provision. Driver has the right to consult with an attorney regarding the legal consequences and effects of this provision.This Arbitration Provision is the full and complete agreement relating to the formal resolution of disputes arising out of this Agreement. In the event any portion of this Arbitration Provision is deemed unenforceable, the remainder of this Arbitration Provision will be enforceable.
4. WHOLE AGREEMENT – This Agreement contains the entire terms and conditions of the Agreement and in the event a Court of competent jurisdiction determines that one or more of the terms are severable, such determination shall not affect the legal enforceability of the remainder of the terms and conditions of the Agreement.
5. COUNTERPARTS – This Agreement may be signed in Counterparts.
BY CLICKIN AGREE WITH TERMS AND CONDITIONS, I ACKNOWLEDGE THAT I FULLY ACCEPT AND UNDERSTAND ALL OF THE ABOVE REQUIREMENTS OF AN DRIVER FOR NINJA
OTHER TERMS AND CONDITIONS
1. Contractual Relationship
Your access and use of the Services constitutes your agreement to be bound by these Terms, which establishes a contractual relationship between you and Ninja. If you do not agree to these Terms, you may not access or use the Services. These Terms expressly supersede prior agreements or arrangements with you. Ninja may immediately terminate these Terms or any Services with respect to you, or generally cease offering or deny access to the Services or any portion thereof, at any time for any reason.
Supplemental terms may apply to certain Services, such as policies for a particular event, activity or promotion, and such supplemental terms will be disclosed to you in region-specific disclosures (e.g., a particular city webpage on NinjaDelivery.com) or in connection with the applicable Service(s). Supplemental terms are in addition to, and shall be deemed a part of, the Terms for the purposes of the applicable Service(s). Supplemental terms shall prevail over these Terms in the event of a conflict with respect to the applicable Services.
Ninja may amend the Terms related to the Services from time to time. Amendments will be effective upon Ninja’s posting of such updated Terms at this location or the amended policies or supplemental terms on the applicable Service(s). Your continued access or use of the Services after such posting constitutes your consent to be bound by the Terms, as amended.
2. The Services
The Services constitute a technology platform that enables users of Ninja’s mobile applications or websites provided as part of the Services (each, an “Application”) to arrange and schedule transportation and/or logistics services with third party providers of such services, including independent third party transportation providers and third party logistics providers under agreement with Ninja or certain of Ninja’s affiliates (“Third Party Providers”). Unless otherwise agreed by Ninja in a separate written agreement with you, the Services are made available solely for your personal, noncommercial use. YOU ACKNOWLEDGE THAT NINJA DOES NOT PROVIDE TRANSPORTATION OR LOGISTICS SERVICES OR FUNCTION AS A TRANSPORTATION CARRIER.
Subject to your compliance with these Terms, Ninja grants you a limited, non-exclusive, non-sublicensable, revocable, non-transferrable license to: (i) access and use the Applications on your personal device solely in connection with your use of the Services; and (ii) access and use any content, information and related materials that may be made available through the Services, in each case solely for your personal, noncommercial use. Any rights not expressly granted herein are reserved by Ninja and Ninja’s licensors.
You may not: (i) remove any copyright, trademark or other proprietary notices from any portion of the Services; (ii) reproduce, modify, prepare derivative works based upon, distribute, license, lease, sell, resell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Services except as expressly permitted by Ninja; (iii) decompile, reverse engineer or disassemble the Services except as may be permitted by applicable law; (iv) link to, mirror or frame any portion of the Services; (v) cause or launch any programs or scripts for the purpose of scraping, indexing, surveying, or otherwise data mining any portion of the Services or unduly burdening or hindering the operation and/or functionality of any aspect of the Services; or (vi) attempt to gain unauthorized access to or impair any aspect of the Services or its related systems or networks.
5. Provision of the Services
You acknowledge that portions of the Services may be made available under Ninja’s various brands or request options associated with transportation or logistics, including the transportation request brands. You also acknowledge that the Services may be made available under such brands or request options by or in connection with: (i) certain of Ninja’s subsidiaries and affiliates; or (ii) independent Third Party Providers, including Transportation Network Company drivers, Transportation Charter Permit holders or holders of similar transportation permits, authorizations or licenses.
6. Third Party Services and Content
The Services and all rights therein are and shall remain Ninja’s property or the property of Ninja’s licensors. Neither these Terms nor your use of the Services convey or grant to you any rights: (i) in or related to the Services except for the limited license granted above; or (ii) to use or reference in any manner Ninja’s company names, logos, product and service names, trademarks or services marks or those of Ninja’s licensors.
8. Your Use of the Services
In order to use most aspects of the Services, you must register for and maintain an active personal user Services account (“Account”). You must be at least 18 years of age, or the age of legal majority in your jurisdiction (if different than 18), to obtain an Account. Account registration requires you to submit to Ninja certain personal information, such as your name, address, mobile phone number and age, as well as at least one valid payment method (either a credit card or accepted payment partner). You agree to maintain accurate, complete, and up-to-date information in your Account. Your failure to maintain accurate, complete, and up-to-date Account information, including having an invalid or expired payment method on file, may result in your inability to access and use the Services or Ninja’s termination of this Agreement with you. You are responsible for all activity that occurs under your Account, and you agree to maintain the security and secrecy of your Account username and password at all times. Unless otherwise permitted by Ninja in writing, you may only possess one Account.
9. User Requirements and Conduct
The Service is not available for use by persons under the age of 18. You may not authorize third parties to use your Account, and you may not allow persons under the age of 18 to receive transportation or logistics services from Third Party Providers unless they are accompanied by you. You may not assign or otherwise transfer your Account to any other person or entity. You agree to comply with all applicable laws when using the Services, and you may only use the Services for lawful purposes (e.g., no transport of unlawful or hazardous materials). You will not in your use of the Services cause nuisance, annoyance, inconvenience, or property damage, whether to the Third Party Provider or any other party. In certain instances you may be asked to provide proof of identity to access or use the Services, and you agree that you may be denied access to or use of the Services if you refuse to provide proof of identity.
10. Text Messaging
By creating an Account, you agree that the Services may send you informational text (SMS) messages as part of the normal business operation of your use of the Services. You may opt-out of receiving text (SMS) messages from Ninja at any time by texting the word CANCEL to ______________from the mobile device receiving the messages. You acknowledge that opting out of receiving text (SMS) messages may impact your use of the Services.
11. Promotional Codes
Ninja may, in Ninja’s sole discretion, create promotional codes that may be redeemed for Account credit, or other features or benefits related to the Services and/or a Third Party Provider’s services, subject to any additional terms that Ninja establishes on a per promotional code basis (“Promo Codes”). You agree that Promo Codes: (i) must be used for the intended audience and purpose, and in a lawful manner; (ii) may not be duplicated, sold or transferred in any manner, or made available to the general public (whether posted to a public form or otherwise), unless expressly permitted by Ninja; (iii) may be disabled by Ninja at any time for any reason without liability to Ninja; (iv) may only be used pursuant to the specific terms that Ninja establishes for such Promo Code; (v) are not valid for cash; and (vi) may expire prior to your use. Ninja reserves the right to withhold or deduct credits or other features or benefits obtained through the use of Promo Codes by you or any other user in the event that Ninja determines or believes that the use or redemption of the Promo Code was in error, fraudulent, illegal, or in violation of the applicable Promo Code terms or these Terms.
12. User Provided Content
Ninja may, in Ninja’s sole discretion, permit you from time to time to submit, upload, publish or otherwise make available to Ninja through the Services textual, audio, and/or visual content and information, including commentary and feedback related to the Services, initiation of support requests, and submission of entries for competitions and promotions (“User Content”). Any User Content provided by you remains your property. However, by providing User Content to Ninja, you grant Ninja a worldwide, perpetual, irrevocable, transferrable, royalty-free license, with the right to sublicense, to use, copy, modify, create derivative works of, distribute, publicly display, publicly perform, and otherwise exploit in any manner such User Content in all formats and distribution channels now known or hereafter devised (including in connection with the Services and Ninja’s business and on third-party sites and services), without further notice to or consent from you, and without the requirement of payment to you or any other person or entity.
You represent and warrant that: (i) you either are the sole and exclusive owner of all User Content or you have all rights, licenses, consents and releases necessary to grant Ninja the license to the User Content as set forth above; and (ii) neither the User Content nor your submission, uploading, publishing or otherwise making available of such User Content nor Ninja’s use of the User Content as permitted herein will infringe, misappropriate or violate a third party’s intellectual property or proprietary rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
You agree to not provide User Content that is defamatory, libelous, hateful, violent, obscene, pornographic, unlawful, or otherwise offensive, as determined by Ninja in its sole discretion, whether or not such material may be protected by law. Ninja may, but shall not be obligated to, review, monitor, or remove User Content, at Ninja’s sole discretion and at any time and for any reason, without notice to you.
13. Network Access and Devices
You are responsible for obtaining the data network access necessary to use the Services. Your mobile network’s data and messaging rates and fees may apply if you access or use the Services from a wireless-enabled device. You are responsible for acquiring and updating compatible hardware or devices necessary to access and use the Services and Applications and any updates thereto. Ninja does not guarantee that the Services, or any portion thereof, will function on any particular hardware or devices. In addition, the Services may be subject to malfunctions and delays inherent in the use of the Internet and electronic communications.
You understand that use of the Services may result in charges to you for the services or goods you receive from a Third Party Provider (“Charges”). After you have received services or goods obtained through your use of the Service, Ninja will facilitate your payment of the applicable Charges on behalf of the Third Party Provider, as such Third Party Provider’s limited payment collection agent. Payment of the Charges in such manner shall be considered the same as payment made directly by you to the Third Party Provider. Charges will be inclusive of applicable taxes where required by law. Charges paid by you are final and non-refundable, unless otherwise determined by Ninja. You retain the right to request lower Charges from a Third Party Provider for services or goods received by you from such Third Party Provider at the time you receive such services or goods. Ninja will respond accordingly to any request from a Third Party Provider to modify the Charges for a particular service or good.
All Charges are due immediately and payment will be facilitated by Ninja using the preferred payment method designated in your Account, after which Ninja will send you a receipt by email. If your primary Account payment method is determined to be expired, invalid or otherwise not able to be charged, you agree that Ninja may, as the Third Party Provider’s limited payment collection agent, use a secondary payment method in your Account, if available.
As between you and Ninja, Ninja reserves the right to establish, remove and/or revise Charges for any or all services or goods obtained through the use of the Services at any time in Ninja’s sole discretion. Further, you acknowledge and agree that Charges applicable in certain geographical areas may increase substantially during times of high demand. Ninja will use reasonable efforts to inform you of Charges that may apply, provided that you will be responsible for Charges incurred under your Account regardless of your awareness of such Charges or the amounts thereof. Ninja may from time to time provide certain users with promotional offers and discounts that may result in different amounts charged for the same or similar services or goods obtained through the use of the Services, and you agree that such promotional offers and discounts, unless also made available to you, shall have no bearing on your use of the Services or the Charges applied to you. You may elect to cancel your request for services or goods from a Third Party Provider at any time prior to such Third Party Provider’s arrival, in which case you may be charged a cancellation fee.
This payment structure is intended to fully compensate the Third Party Provider for the services or goods provided. Except with respect to taxicab transportation services requested through the Application, Ninja does not designate any portion of your payment as a tip or gratuity to the Third Party Provider. Any representation by Ninja (on Ninja’s website, in the Application, or in Ninja’s marketing materials) to the effect that tipping is “voluntary,” “not required,” and/or “included” in the payments you make for services or goods provided is not intended to suggest that Ninja provides any additional amounts, beyond those described above, to the Third Party Provider. You understand and agree that, while you are free to provide additional payment as a gratuity to any Third Party Provider who provides you with services or goods obtained through the Service, you are under no obligation to do so. Gratuities are voluntary. After you have received services or goods obtained through the Service, you will have the opportunity to rate your experience and leave additional feedback about your Third Party Provider.
15. Repair or Cleaning Fees
You shall be responsible for the cost of repair for damage to, or necessary cleaning of, Third Party Provider vehicles and property resulting from use of the Services under your Account in excess of normal “wear and tear” damages and necessary cleaning (“Repair or Cleaning”). In the event that a Third Party Provider reports the need for Repair or Cleaning, and such Repair or Cleaning request is verified by Ninja in Ninja’s reasonable discretion, Ninja reserves the right to facilitate payment for the reasonable cost of such Repair or Cleaning on behalf of the Third Party Provider using your payment method designated in your Account. Such amounts will be transferred by Ninja to the applicable Third Party Provider and are non-refundable.
16. Disclaimers; Limitation of Liability; Indemnity
THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” NINJA DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, NOT EXPRESSLY SET OUT IN THESE TERMS, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN ADDITION, NINJA MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE REGARDING THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, OR AVAILABILITY OF THE SERVICES OR ANY SERVICES OR GOODS REQUESTED THROUGH THE USE OF THE SERVICES, OR THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. NINJA DOES NOT GUARANTEE THE QUALITY, SUITABILITY, SAFETY OR ABILITY OF THIRD PARTY PROVIDERS. YOU AGREE THAT THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE SERVICES, AND ANY SERVICE OR GOOD REQUESTED IN CONNECTION THEREWITH, REMAINS SOLELY WITH YOU, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.
LIMITATION OF LIABILITY
NINJA SHALL NOT BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOST DATA, PERSONAL INJURY, OR PROPERTY DAMAGE RELATED TO, IN CONNECTION WITH, OR OTHERWISE RESULTING FROM ANY USE OF THE SERVICES, EVEN IF NINJA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NINJA SHALL NOT BE LIABLE FOR ANY DAMAGES, LIABILITY OR LOSSES ARISING OUT OF: (i) YOUR USE OF OR RELIANCE ON THE SERVICES OR YOUR INABILITY TO ACCESS OR USE THE SERVICES; OR (ii) ANY TRANSACTION OR RELATIONSHIP BETWEEN YOU AND ANY THIRD PARTY PROVIDER, EVEN IF NINJA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NINJA SHALL NOT BE LIABLE FOR DELAY OR FAILURE IN PERFORMANCE RESULTING FROM CAUSES BEYOND NINJA’S REASONABLE CONTROL. YOU ACKNOWLEDGE THAT THIRD PARTY TRANSPORTATION PROVIDERS PROVIDING TRANSPORTATION SERVICES REQUESTED THROUGH SOME REQUEST BRANDS MAY OFFER RIDESHARING OR PEER-TO-PEER TRANSPORTATION SERVICES AND MAY NOT BE PROFESSIONALLY LICENSED OR PERMITTED. IN NO EVENT SHALL NINJA’S TOTAL LIABILITY TO YOU IN CONNECTION WITH THE SERVICES FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION EXCEED FIVE HUNDRED U.S. DOLLARS (US $500).
NINJA’S SERVICES MAY BE USED BY YOU TO REQUEST AND SCHEDULE TRANSPORTATION, GOODS, OR LOGISTICS SERVICES WITH THIRD PARTY PROVIDERS, BUT YOU AGREE THAT NINJA HAS NO RESPONSIBILITY OR LIABILITY TO YOU RELATED TO ANY TRANSPORTATION, GOODS OR LOGISTICS SERVICES PROVIDED TO YOU BY THIRD PARTY PROVIDERS OTHER THAN AS EXPRESSLY SET FORTH IN THESE TERMS.
THE LIMITATIONS AND DISCLAIMER IN THIS SECTION 5 DO NOT PURPORT TO LIMIT LIABILITY OR ALTER YOUR RIGHTS AS A CONSUMER THAT CANNOT BE EXCLUDED UNDER APPLICABLE LAW.
YOU AGREE TO INDEMNIFY AND HOLD NINJA AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS HARMLESS FROM ANY AND ALL CLAIMS, DEMANDS, LOSSES, LIABILITIES, AND EXPENSES (INCLUDING ATTORNEYS’ FEES), ARISING OUT OF OR IN CONNECTION WITH: (I) YOUR USE OF THE SERVICES OR SERVICES OR GOODS OBTAINED THROUGH YOUR USE OF THE SERVICES; (II) YOUR BREACH OR VIOLATION OF ANY OF THESE TERMS; (III) NINJA’S USE OF YOUR USER CONTENT; OR (IV) YOUR VIOLATION OF THE RIGHTS OF ANY THIRD PARTY, INCLUDING THIRD PARTY PROVIDERS.
17. Dispute Resolution
You agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services (collectively, “Disputes”) will be settled by binding arbitration between you and Ninja, 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. You acknowledge and agree that you and Ninja are each waiving the right to a trial by jury or to participate as a plaintiff or class in any purported class action or representative proceeding. Further, unless both you and Ninja 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. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive any termination of these Terms.
b. Arbitration Rules and Governing Law
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 available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section.
c. 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 www.adr.org/aaa/ShowPDF?doc=ADRSTG_004175 and a separate form for California residents at www.adr.org/aaa/ShowPDF?doc=ADRSTG_015822.) The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of California 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 fifteen (15) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
d. Arbitration Location and Procedure
Unless you and Ninja 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 Ninja 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.
e. 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. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. 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. Each party to the arbitration shall bear their own costs and attorney’s fees irrespective of the outcome of the arbitration.
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 $75,000, Ninja 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)).
Notwithstanding the provisions of the modification-related provisions above, if Ninja changes this “Dispute Resolution” section after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by providing Ninja written notice of such rejection by mail or hand delivery to: Ninja Delivery, Inc., Attn: Legal Dept., , or by email from the email address associated with your Account to: @NinjaDelivery.com, within 30 days of the date such change became effective, as indicated in the “Last update” date above. 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, you are agreeing that you will arbitrate any Dispute between you and Ninja in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
18. Choice of Law
These Terms are governed by and construed in accordance with the laws of the State of California, without giving effect to any conflict of law principles.
19. Claims of Copyright Infringement
Claims of copyright infringement should be sent to Ninja’s designated agent. Please visit Ninja’s web page at www.NinjaDelivery.com for the designated address and additional information.
Ninja may give notice by means of a general notice on the Services, electronic mail to your email address in your Account, or by written communication sent by first class mail or pre-paid post to your address in your Account. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). You may give notice to Ninja, with such notice deemed given when received by Ninja, at any time by first class mail or pre-paid post to Ninja Delivery, Inc., Attn: Legal/Compliance Dept.,______________________________________________________.
You may not assign these Terms without Ninja’s prior written approval. Ninja may assign these Terms without your consent to: (i) a subsidiary or affiliate; (ii) an acquirer of Ninja’s equity, business or assets; or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. No joint venture, partnership, employment, or agency relationship exists between you, Ninja or any Third Party Provider as a result of this Agreement or use of the Services. If any provision of these Terms is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced to the fullest extent under law. Ninja’s failure to enforce any right or provision in these Terms shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Ninja in writing.
22. Alcohol and Tobacco Delivery.
By using the Ninja Platform to place a delivery requests for alcoholic beverages and/or tobacco products, you acknowledge and agree:
(A) that the U.S. Federal and State laws require that purchasers of alcoholic beverages be at least twenty-one (21) years of age and alcoholic beverages may not be sold, delivered or given away to persons who are, apparently or actually, under the age of twenty-one (21) years or visibly intoxicated;
(B) that you are at least twenty-one (21) years of age or older;
(C) to provide valid photo identification at the time of accepting delivery of any alcoholic beverages and/or tobacco products; (Valid forms of identification are a valid driver’s license or non-driver identification card issued by the Commissioner of Motor Vehicles, the Federal Government, a State Government, Commonwealth, Possession or Territory of the United States or a Provincial Government of Canada, a valid U.S. passport, a valid passport of any other country, or a valid military ID from the U.S. (NYS, ABC Law Section 65-b.2(b));
(D) that sale and delivery of alcohol beverages and/or tobacco products to you is made by the participating merchant members and NOT Ninja Delivery;
(E) that Ninja Delivery is a separate business and is not affiliated with any of the merchant members selling alcoholic beverages or tobacco;
(F) that neither Ninja Delivery nor any of our affiliates or our or their partners, officers, directors, employees, shareholders or agents (collectively ” Ninja Delivery Parties”) shall have any liability to you or any third party in connection with purchase, sale, delivery and/or consumption of the alcoholic beverages and/or tobacco products or any consequences thereof; and