BAM provides certain services to restaurants related to promoting and managing ordering and delivery of restaurants' food and beverage products on BAM's proprietary online platform (the "Platform").
Driver is an independent business providing delivery services, authorized and able to satisfy any and all legal requirements
necessary to perform the services contemplated by this Agreement in the geographic location(s) in which Driver
operates. Driver understands and agrees that Driver enters into this Agreement as an independent business entity, and
Driver desires to enter into this Agreement for the right to access the Platform in order to receive delivery opportunities via the Platform.
In consideration of these recitals and the mutual promises below, and for other good and valuable consideration, BAM and Driver agree as set forth in this Agreement.
This Agreement governs the entire relationship between the parties and establishes the parties' respective rights and
obligations arising out of this relationship. The relationship between the parties governed by this Agreement includes
Driver's access to the Platform, which facilitates Driver's provision of Services through delivery opportunities. The
parties acknowledge and agree that this Agreement is a licensing agreement between independent businesses that are
separately owned and operated. The parties intend this Agreement to create the relationship of principal and
independent contractor and not that of employer and employee. Neither party shall have the right to bind the other by
contract (or otherwise) except as specifically provided in this Agreement. Nothing in this Agreement requires Driver to
accept any delivery opportunity on the Platform, and nothing in this Agreement guarantees Driver any particular
volume of delivery opportunities. BAM reserves the right, at any time, to modify or supplement external documents
referenced and incorporated into this Agreement and/or any information referenced via hyperlink (or the addresses
where such information may be found). Such modifications shall become effective upon posting. Such modifications or
supplements may be provided to Driver via electronic means.
1. Driver's Operations.
1.1. Driver understands and agrees that in providing any services under this Agreement ("Services"), Driver is not
an employee or customer of BAM, any restaurant selling products through the Platform, or any diner
purchasing products through the Platform. Driver represents that in providing any Services, Driver operates
an independent business, whether a sole proprietorship or other formal business entity, including but not
limited to a corporation, limited liability company or partnership. If Driver is required to obtain or maintain a
business license, Driver represents that Driver has obtained and agreed to maintain such a license.
1.2. Driver understands that: (i) Driver is free to select the times Driver wishes to access the Platform; (ii) Driver is
free to accept, reject or ignore any particular delivery opportunity made available to Driver through the
Platform; (iii) Driver has the sole right to control the manner and means by which Driver performs Services
through the Platform; and (iv) Driver is engaging BAM to provide Driver access to the Platform, which will
permit Driver to perform Services.
1.3. Driver represents that, as applicable, Driver possesses all tools, vehicles and equipment, including mobile
telephone, modes of transportation, etc. (collectively "Equipment") and personnel necessary to lawfully
provide the Services. Moreover, Driver agrees that Driver is solely responsible for ensuring that such
Equipment conforms to applicable laws, including those pertaining to health, safety, inspection and
operational capability, and that Driver is solely responsible for all costs and expenses Driver may incur under
this Agreement, including, but not limited to, traffic tickets, tolls, parking fees, inspections, insurance and any
other costs related to Equipment. Except as otherwise required by law, Driver assumes all risk of damage or
loss to Driver's Equipment.
1.4. Driver shall not subcontract or otherwise delegate any of Driver's rights or obligations under this Agreement.
1.5. Nothing in this Agreement shall prevent the parties from at any time engaging in similar arrangements or
business with others, including the parties' direct competitors, or from advertising themselves to the public
as available to engage in similar arrangements or business with others.
1.6. Driver understands and agrees that Driver is not required at any time to wear or use any clothing or
equipment provided by or bearing BAM's name or logo, or to purchase, lease or rent any products,
equipment or services from BAM.
1.7. Driver agrees that before receiving access to the Platform, Driver may be required to consent to and pass a
background check based on Driver's own social security number. Driver also agree that, at BAM's sole discretion and in accordance with applicable law, BAM may require Driver to consent to and pass one or
more additional background checks from time to time.
1.8. Driver expressly consents and agrees to be contacted by, and to receive and accept communications from,
BAM and partners, representatives and/or affiliates (which may include restaurants or diners using the
Platform) via different communication methods, including but not limited to emails, SMS/text messages,
push notifications, and/or calls to contacts, including telephone numbers, Driver provide to BAM. By
consenting to being contacted, Driver understands and agrees that Driver may receive communications
(including pre-recorded messages and/or communications generated by automatic telephone dialing
systems) sent by or on behalf of BAM on various subjects, including but not limited to (i) operational or
transactional communications, such as those concerning Driver's user account, sign up progress to become a
Contractor, use of the Platform, and/or features available on the Platform, (ii) communications relating to
deliveries and delivery opportunities, including delivery fees and incentive offers; (iii) promotions, advertising
and/or marketing; (iv) news concerning BAM and industry developments that affect Driver's relationship with
BAM; and (v) account verification communications. Message and data rates may apply. By consenting to be
contacted, Driver represents that the telephone number(s) that Driver has provided to BAM are Driver's
correct contact numbers, that Driver is permitted to receive calls at such telephone number(s), and that
Driver will promptly alert BAM whenever Driver stops using a particular telephone number.
2.1. BAM may notify Driver of the opportunity to complete a delivery from a restaurant to a diner. For each delivery opportunity Driver accepts (a "Delivery"), Driver agrees to complete the delivery of the product(s)
in compliance with any and all applicable federal, state, and local laws, rules and regulations, including but
not limited to applicable food and health safety laws, rules and regulations. Driver further agrees that for any
Delivery that includes any age-restricted items (e.g., alcohol), Driver is responsible for ensuring the Delivery
complies with all federal, state and local laws, including but not limited to ensuring that the individual
accepting the Delivery is the individual who placed the order, has provided valid identification, is the required
minimum age and is not intoxicated.
2.2. Driver agrees that if Driver fails to complete any Delivery (a "Service Failure"), BAM reserves the right to
recover any costs incurred by BAM related to Driver's action(s) or omission(s). Driver further agrees that if
Driver fails to return to a restaurant any item that cannot be delivered (a "Return Failure"), BAM reserves the
right to recover any costs incurred by BAM related to the Return Failure. If Driver disputes responsibility for a
Service Failure or Return Failure, Driver agrees to resolve the dispute pursuant to Section 3.4 below.
3. Fees; Payments; Payment Disputes; Reporting Income.
3.1. Unless otherwise notified in writing by BAM or as otherwise provided herein, Driver will receive payment per
completed leg of Delivery in the amount listed in the then-current payment schedule for the relevant type of
delivery and/or relevant market as made available by BAM from time to time. BAM reserves the right, at its
sole discretion, to change the payment schedules at any time for any reason, and Driver's continued use of
the Platform shall constitute Driver's consent to any such change. Nothing in this Agreement prevents the
parties from negotiating a different rate of pay. Driver is free to contact BAM regarding the payment
schedule, and is free to accept, reject or ignore any delivery opportunities as a means to earn different rates
3.2. BAM agrees to transmit payment for all completed Deliveries to Driver via direct deposit no later than
fourteen (14) days after Driver completes the corresponding Delivery unless the parties negotiate and agree
to a different arrangement. Driver is responsible for any applicable processing fees associated with such
remittance, and Driver understands that Driver may incur and agree to pay transfer and/or transaction fees,
as applicable, for such payments.
3.3. Diners may pay Driver a gratuity in cash or via other payment method(s). Nothing in this Agreement shall
prevent Driver from retaining one hundred percent (100%) of any gratuity paid to Driver by a diner. BAM
acknowledges it has no right to interfere with the amount of gratuity given to Driver by a diner.
3.4. In the event of a Service Failure or Return Failure, Driver agrees that Driver may forfeit all or a portion of the
payment as described above (depending on the extent to which the Service Failure results from Driver's
act(s) or omission(s)). Any reduction of payment shall be based upon proof provided by the diner, restaurant,
Driver and/or any other party with information relevant to the dispute. BAM shall make the initial
determination as to what percentage of fault Driver bears, and Driver shall have the right to challenge BAM's determination as described in the provisions set forth in Section 9, below. In the event BAM fails to remit
payment in a timely or accurate manner, Driver shall have the right to seek proper payment by any legal
means contemplated by this Agreement, provided, however, that Driver must first inform BAM in reasonable
written detail of the failure and provide BAM a reasonable opportunity to cure.
3.5. If Driver earns the minimum income established by the Internal Revenue Service, BAM shall report all
payments made to Driver on a calendar-year basis by issuing an IRS Form 1099. Driver agrees that BAM may
fulfill any tax-related obligations, including but not limited to providing 1099 Forms, through any means,
including by electronic transmission to the email address associated with Driver as provided by Driver.
Further, Driver agrees to report all such payments to the appropriate federal, state and local taxing
4. Disclaimer. BAM, FOR ITSELF AND ITS LICENSORS, MAKES NO EXPRESS, IMPLIED OR STATUTORY
REPRESENTATIONS, WARRANTIES, OR GUARANTEES IN CONNECTION WITH THE PLATFORM. UNLESS
OTHERWISE EXPRESSLY STATED IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE
LAW, THE PLATFORM IS PROVIDED TO DRIVER ON AN "AS IS," "AS AVAILABLE" AND "WHERE-IS" BASIS WITH NO
WARRANTY OF ANY KIND WHATSOEVER AND BAM HEREBY DISCLAIMS AND EXCLUDES ALL WARRANTIES
WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND ANY IMPLIED
WARRANTIES ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE.
5. Indemnification. Driver agrees to defend, indemnify and hold harmless BAM, its affiliates, licensors and service
providers, and its and their respective officers, directors, members, managers, employees, contractors, agents,
licensors, suppliers, successors and assigns (collectively, "Indemnitees"), from and against: (i) any and all claims,
demands, damages, lawsuits, losses, liabilities and causes of action arising directly or indirectly from, as a result of,
or in connection with the actions of Driver, including but not limited to personal injury to or death of any person
(including Driver); (ii) any liability arising from Driver's failure to comply with the terms of this Agreement; (iii) any
and all tax liabilities and responsibilities for payment of all federal, state and/or local taxes, including but not
limited to all payroll taxes, self-employment taxes, workers' compensation premiums and any contributions
imposed or required under federal, state and/or local laws, that are owed by Driver with respect to Driver's use of
the Platform to complete Deliveries; and (iv) all costs associated with Driver's business, including but not limited to
the expense and responsibility for any and all applicable insurance, local, state and/or federal licenses, permits,
taxes, and assessments of any and all regulatory agencies, boards, or municipalities. Driver agrees that Driver's
obligations in this Section 5 shall include the cost of defense, including attorneys' fees, as well as the payment of
any final judgment rendered against or settlement agreed upon by BAM or any of the Indemnitees.
6. Limitation of Liability.
6.1. Limits on Liability. BAM'S MAXIMUM LIABILITY TO DRIVER ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE SERVICES, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT
LIABILITY) OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, IS LIMITED TO THE AMOUNT OF FEES PAID TO DRIVER
BY BAM IN THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO THE
6.2. No Consequential Damages. IN NO EVENT WILL BAM HAVE ANY LIABILITY TO DRIVER FOR ANY LOST
PROFITS, LOST DATA, COSTS OF COVER, OR SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, OR
PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR
STRICT LIABILITY) OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT BAM HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
6.3. Essential Purpose. THE DISCLAIMERS AND LIMITATIONS SET FORTH ABOVE IN THIS SECTION 6 SHALL BE
DEEMED TO APPLY: (I) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND
(II) NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF THIS AGREEMENT OR ANY LIMITED
7. Term and Termination; Suspension.
7.1. Term. Unless terminated earlier as expressly permitted by this Agreement, the initial term of this
Agreement shall be a period of one (1) year, commencing on the Effective Date, and expiring on the one
(1) year anniversary thereof (the "Initial Term"). Upon the expiration of the Initial Term, this Agreement
shall automatically renew for successive one (1)-year terms (each, a "Renewal Term," and together with
the Initial Term, the "Term"), unless either party gives written notice to the other at least ninety (90) days
prior to the end of the Initial Term, or the then-current Renewal Term, as applicable, of such party's
intention not to renew this Agreement.
7.2. Termination of Agreement. This Agreement may be terminated for cause on written notice (i) by either
party, if the other party materially breaches any provision of this Agreement and does not cure such
breach within thirty (30) days after such party's receipt of written notice of such breach; or (ii) by either
party, if the other party (a) becomes insolvent, (b) is generally unable to pay, or fails to pay, its debts as
they become due, (c) files, or has filed against it, a petition for voluntary or involuntary bankruptcy or
pursuant to any other insolvency law, (d) makes or seeks to make a general assignment for the benefit of
its creditors, or (e) applies for, or consents to, the appointment of a trustee, receiver or custodian for a
substantial part of its property or business. Notwithstanding the foregoing, BAM may also terminate this
Agreement at any time without cause upon thirty (30) days' written notice to Driver.
7.3. Suspension. Without limiting its other rights and remedies under this Agreement or at law or in equity,
BAM may suspend Driver's access to or use of all or any part of the Services, without obligation or liability,
during any period when BAM believes, in its reasonable discretion, that Driver has failed to comply with
any material term of this Agreement.
8.1. Driver acknowledges and agrees that in the performance of this Agreement Driver may have direct or
indirect access or exposure to BAM's confidential information ("Confidential Information"). Confidential
Information includes BAM's data, user information, diner information, and transaction volume, marketing
and business plans, business, financial, technical, operational and such other nonpublic information (whether
disclosed in writing or verbally) that BAM designates as being proprietary or confidential or that Driver should
reasonably know to treat as confidential. Notwithstanding the foregoing, Confidential Information shall not
include any information to the extent it: (a) is or becomes part of the public domain through no action or
omission by Driver; (b) was possessed by Driver prior to the Effective Date without an obligation of
confidentiality; or (c) is disclosed to Driver by a third party having no obligation of confidentiality with respect
8.2. Driver acknowledges and agrees that (i) all Confidential Information is and shall remain the exclusive
property of BAM; (ii) Driver shall not use Confidential Information for any purpose except to provide the
Services in accordance with the terms of this Agreement; (iii) Driver shall not disclose Confidential
Information to any third party; and (iv) Driver shall not keep Confidential Information and shall return or
destroy (with written confirmation of destruction) all Confidential Information upon the termination of this
Agreement or at BAM's request.
8.3. If Driver becomes legally compelled to disclose any Confidential Information, Driver will provide BAM with
prompt written notice of such requirement and will cooperate with BAM should BAM seek a protective order
or another appropriate remedy. If BAM waives Driver's compliance with this obligation or fails to obtain a
protective order or other appropriate remedy, Driver will furnish only that portion of the Confidential
Information that is legally required to be disclosed; provided that any Confidential Information so disclosed
shall maintain its confidentiality protection for all purposes other than such legally compelled disclosure.
9. Dispute Resolution and Arbitration; Class Action Waiver.
9.1. This Dispute Resolution and Arbitration; Class Action Waiver provision (the "Arbitration Provision") is
intended to facilitate the prompt and efficient resolution of any Disputes that may arise between Driver
and BAM through arbitration. The term "Disputes" means any dispute, claim or controversy between
Driver and BAM arising out of or relating to any aspect of Driver's relationship with BAM, whether in
contract, statute, regulation, ordinance, tort, fraud, misrepresentation, negligence, or any other legal or
equitable cause of action or claim for relief, and includes the validity, enforceability or scope of this
provision (with the exception of the Class Action Waiver clause below).
9.2. Arbitration replaces the right to go to court. Driver understands and hereby agrees and acknowledges that
by entering into this Agreement, Driver and BAM are each waiving the right to a jury trial or a trial before a
judge in a public court. In the absence of this Arbitration Provision, Driver and BAM might otherwise have
had a right or opportunity to bring Disputes in a court, before a judge or jury, and/or to participate or be
represented in a case filed in court by others (including class actions). Except as otherwise provided below,
those rights are hereby waived.
9.3. Driver acknowledges and agrees that this Section 9 does not alter Driver's status as an independent
contractor in fact and in law. Driver further agrees that when performing Services, Driver is not doing so as
an employee of BAM, a restaurant or a diner.
9.4. DRIVER HEREBY AGREES THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, WHETHER
PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, SHALL BE
RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION, TAKING PLACE IN PHILADELPHIA,
PENNSYLVANIA, RATHER THAN IN A COURT BEFORE A JUDGE OR JURY.
9.5. For all Disputes, Driver shall first give BAM an opportunity to resolve the dispute by sending BAM a written
notification that includes (i) Driver's name, (ii) Driver's address, (iii) a written description, in reasonable
detail, of Driver's claim, and (iv) the specific relief Driver seeks. If BAM does not resolve Driver's claim
within forty-five (45) days after it receives Driver's written notification, Driver may pursue Driver's Dispute
9.6. Any arbitration of Disputes shall be brought with the American Arbitration Association ("AAA") and will be
conducted before a single arbitrator. For Disputes of less than $75,000, the AAA's Supplementary
Procedures for Consumer-Related Disputes will apply; for Disputes involving $75,000 or more, the AAA's
Commercial Arbitration Rules will apply. The Federal Arbitration Act ("FAA") governs the arbitrability of all
Disputes. The arbitrator may order such discovery as allowed by applicable law and the AAA rules.
However, discovery rights and rights of appeal generally are more limited in arbitration than in court. The
arbitrator may award on an individual basis any relief that would be available pursuant to applicable law,
and that award will be final and binding on the parties, except for any right of appeal provided by the FAA
or other applicable law.
9.7. Class Action Waiver. Except as required by applicable law or otherwise provided in this Arbitration
Provision, the arbitrator may not consolidate more than one person's claims and may not preside over any
form of a class or representative proceeding of claims (such as class action, representative action, or
private attorney general action) unless Driver and BAM specifically agree to do so in writing following
initiation of the arbitration.
10.1. Insurance. At Driver's own expense, Driver shall, during the Term, maintain up-to-date insurance of the types
and in amounts equal to or greater than the minimum requirements as required by law in the jurisdiction in
which Driver provides Services. This includes, but is not limited to, vehicle insurance that is equal to or
greater than the minimum vehicle insurance coverage amounts and types required by state or local law,
workers' compensation insurance and/or occupational accident insurance. BAM may, but is not obligated to,
offer Driver the opportunity to participate in certain group insurance plans made available to Driver by BAM
and/or third-party providers from time to time. Driver agrees to deliver to BAM, upon request, up-to-date
certificates of insurance as proof of coverage. Driver agrees to make available to BAM updated certificates
each time Driver purchases, renews or materially alters Driver's insurance coverage. Driver also agrees to
give BAM at least thirty (30) days' prior written notice before cancellation of any insurance policy required by
10.2. Independent Contractor Relationship. Driver's relationship with BAM is that of an independent contractor,
and nothing in this Agreement is intended to, or shall be construed to, create a partnership, agency, joint
venture, employment, franchise or similar relationship. Neither party has the authority to bind the other
or to incur any obligation on its behalf.
10.3. Successors and Assigns. BAM shall have the right to (i) assign this Agreement pursuant to a merger,
acquisition, sale of assets, operation of law, or otherwise and (ii) delegate the performance of its duties or
obligations hereunder without the prior written consent of Driver. Driver shall not assign its rights
hereunder, whether by merger, acquisition, sale of assets, operation of law, or otherwise, without the
prior written consent of BAM. Any purported assignment in violation of the preceding sentence is null and
void. Subject to the foregoing, this Agreement shall be binding upon, and inure to the benefit of, the
successors and assigns of the parties hereto.
10.4. Notices. Any notice required or permitted by this Agreement shall be in writing and shall be delivered as
follows, with notice deemed given as indicated: (i) by personal delivery, when actually delivered; (ii) by
overnight courier, upon written verification of receipt; (iii) by email, effective (a) when the sender receives
an automated message from the recipient confirming delivery or (b) one hour after the time sent (as
recorded on the device from which the sender sent the email) unless the sender receives an automated
message that the email has not been delivered, whichever happens first, but if the delivery or receipt is on
a day which is not a business day or is after 5:00 pm (addressee's time) it is deemed to be received at 9:00
am on the following business day; or (iv) by certified or registered mail, return receipt requested, upon verification of receipt. Notices to each party shall be sent to the address set forth on the signature page to
this Agreement, or other address as a party may provide in writing from time to time.
10.5. Governing Law; Forum. The Federal Arbitration Act, the laws of the Commonwealth of Pennsylvania and
applicable U.S. federal law govern all matters arising out of or relating to this Agreement without giving
effect to any conflict of law principles. Except for Disputes subject to arbitration as described above, with
respect to any disputes relating to this Agreement, each of the parties irrevocably consents to the
exclusive personal jurisdiction of the federal and state courts located in Philadelphia County, Pennsylvania
as applicable, for any matter arising out of or relating to this Agreement.
10.6. Severability. If a court of law holds any provision of this Agreement to be illegal, invalid or unenforceable,
(i) that provision shall be deemed amended to achieve an economic effect that is as near as possible to
that provided by the original provision and (ii) the legality, validity and enforceability of the remaining
provisions of this Agreement shall not be affected.
10.7. Survival. The rights, duties and obligations of the parties that by their nature are intended to continue and
survive will survive any expiration or termination.
10.8. Waiver; Modification. If a party waives any term, provision or breach of this Agreement, such waiver shall
not be effective unless it is in writing and signed by the party against whom the waiver is being enforced.
No waiver by a party of a breach of this Agreement shall constitute a waiver of any other or subsequent
breach by that party. This Agreement may only be modified by mutual written agreement of authorized
representatives of the parties.
10.9. Force Majeure. Neither party shall be liable for any failure or delay in performance under this Agreement
due to fire, explosion, earthquake, storm, flood or other weather; unavailability of necessary utilities or
raw materials; Internet service provider failures or delays, or denial of service attacks; war, civil unrest,
acts of terror, insurrection, riot, acts of God or the public enemy; strikes or other labor problems; any law,
act, order, proclamation, decree, regulation, ordinance, or instructions of government or other public
authorities, or judgment or decree of a court of competent jurisdiction (not arising out of breach by such
party of this Agreement); or any other event beyond the reasonable control of the party whose
performance is to be excused.
10.10. Entire Agreement. This Agreement constitutes the entire agreement between the parties relating to the
subject matter hereof and supersedes all agreements, whether prior or contemporaneous, written or oral,
concerning such subject matter.