Last Updated: August 7, 2020
These Terms of Service constitute a legally binding agreement (the “Agreement”) between you and PickNdell, Inc., its parents, subsidiaries, representatives, affiliates, officers and directors (collectively, “PickNdell,” “we,” “us” or “our”) governing your use of the PickNdell application, website, and technology platform (collectively, the “PickNdell Platform”).
PLEASE BE ADVISED: THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOW CLAIMS BETWEEN YOU AND PickNdell CAN BE BROUGHT (SEE SECTION 17 BELOW). THESE PROVISIONS WILL, WITH LIMITED EXCEPTION, REQUIRE YOU TO SUBMIT CLAIMS YOU HAVE AGAINST PickNdell TO BINDING AND FINAL ARBITRATION ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS, GROUP OR REPRESENTATIVE ACTION OR PROCEEDING. AS A COURIER OR COURIER APPLICANT, YOU HAVE AN OPPORTUNITY TO OPT OUT OF ARBITRATION WITH RESPECT TO CERTAIN CLAIMS AS PROVIDED IN SECTION 17.
By entering into this Agreement, and/or by using or accessing the PickNdell Platform you expressly acknowledge that you understand this Agreement (including the dispute resolution and arbitration provisions in Section 17) and accept all of its terms. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT USE OR ACCESS THE PickNdell PLATFORM OR ANY OF THE SERVICES PROVIDED THROUGH THE PickNdell PLATFORM. If you use the PickNdell Platform in another country, you agree to be subject to PickNdell's terms of service for that country.
The PickNdell Platform provides a platform where persons who seek to have a parcel of any kind to be delivered to certain destinations (“Senders”) can be matched with delivery options to such destinations. One option for Senders is to request a Courier from Couriers who are driving to or through those destinations (“Couriers”). Couriers and Senders are collectively referred to herein as “Users,” and the delivery services provided by Couriers to Senders shall be referred to herein as "Delivery Services." As a User, you authorize PickNdell to match you with a Courier or Sender based on factors such as your location, the estimated time to pickup, your destination, user preferences, and platform efficiency, and to cancel an existing match and rematch based on the same considerations. Any decision by a User to offer or accept Delivery Services is a decision made in such User’s sole discretion. Each Delivery Service provided by a Courier to a Sender shall constitute a separate agreement between such persons.
In certain markets, Senders may have the option to rent Couriers with bikes (bike-del) or scooters (scooter-del) through the PickNdell Platform to deliver to their destination.
PickNdell reserves the right to modify the terms and conditions of this Agreement, such modifications shall be binding on you only upon your acceptance of the modified Agreement. PickNdell reserves the right to modify any information on pages referenced in the hyperlinks from this Agreement from time to time, and such modifications shall become effective upon posting. Continued use of the PickNdell Platform or Delivery Services 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).
The PickNdell Platform may only be used by individuals who have the right and authority to enter into this Agreement, are fully able and competent to satisfy the terms, conditions, and obligations herein. The PickNdell Platform is not available to Users who have had their User account temporarily or permanently deactivated. You may not allow other persons to use your User account, and you agree that you are the sole authorized user of your account. To use the PickNdell Platform, each User shall create a User account. Each person may only create one User account, and PickNdell reserves the right to deactivate any additional or duplicate accounts.
By becoming a User, you represent and warrant that you are at least 18 years old.
As a Sender, you understand that request or use of Delivery Services may result in charges to you (“Charges”). Charges for Delivery Services include fees and other applicable fees, tolls, surcharges, and taxes, plus any tips to the Courier that you elect to pay. PickNdell has the authority and reserves the right to determine and modify pricing by posting applicable pricing terms or quoting you a price for a specific delivery at the time you make a request. Pricing may vary based on the type of service you request (e.g., size of parcel, type of vehicle, distance, time of day and urgency). You are responsible for reviewing the PickNdell pricing information and shall be responsible for all Charges incurred under your User account regardless of your awareness of such Charges or the amounts thereof.
Fares. The fare consists of a base charge and incremental charges based on the duration and distance of your delivery. For particularly short deliveries, minimum fees may apply. Please note that we use GPS data from your Courier’s phone to calculate the distance traveled on your delivery. We cannot guarantee the availability or accuracy of GPS data. If we lose signal we will calculate time and distance using available data from your delivery.
Fees and Other Charges.
If you are a Courier, you will receive payment for your provision of Delivery Services pursuant to the terms of the Courier Addendum, which shall form part of this Agreement between you and PickNdell.
By entering into this Agreement or using the PickNdell Platform, you agree to receive communications from us, including via email, text message, calls, and push notifications. You agree that texts, calls or prerecorded messages may be generated by automatic telephone dialing systems. Communications from PickNdell, its affiliated companies and/or Couriers, may include but are not limited to: operational communications concerning your User account or use of the PickNdell Platform or Delivery Services, use of bikes and scooters through the PickNdell Platform, updates concerning new and existing features on the PickNdell Platform, communications concerning promotions run by us or our third-party partners, and news concerning PickNdell and industry developments. Standard text messaging charges applied by your cell phone carrier will apply to text messages we send.
IF YOU WISH TO OPT OUT OF PROMOTIONAL EMAILS, YOU CAN UNSUBSCRIBE FROM OUR PROMOTIONAL EMAIL LIST BY FOLLOWING THE UNSUBSCRIBE OPTIONS IN THE PROMOTIONAL EMAIL ITSELF.YOU ACKNOWLEDGE THAT YOU ARE NOT REQUIRED TO CONSENT TO RECEIVE PROMOTIONAL TEXTS OR CALLS AS A CONDITION OF USING THE PickNdell PLATFORM OR RELATED SERVICES.
PickNdell, at its sole discretion, may make available promotions, referral programs and loyalty programs with different features to any Users or prospective Users. These promotions and programs, unless made to you, shall have no bearing whatsoever on your Agreement or relationship with PickNdell. PickNdell reserves the right to withhold or deduct credits or benefits obtained through a promotion or program in the event that PickNdell determines or believes that the redemption of the promotion or receipt of the credit or benefit was in error, fraudulent, illegal, or in violation of the applicable promotion or program terms or this Agreement. PickNdell reserves the right to terminate, discontinue or cancel any promotions or programs at any time and in its sole discretion without notice to you.
With respect to your use of the PickNdell Platform and your participation in the Delivery Services, you agree that you will not:
By providing Delivery Services as a Courier on the PickNdell Platform, you represent, warrant, and agree that:
All intellectual property rights in the PickNdell Platform shall be owned by PickNdell absolutely and in their entirety. These rights include database rights, copyright, design rights (whether registered or unregistered), trademarks (whether registered or unregistered) and other similar rights wherever existing in the world together with the right to apply for protection of the same. All other trademarks, logos, service marks, company or product names set forth in the PickNdell Platform are the property of their respective owners. You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information (“Submissions”) provided by you to us are non-confidential and shall become the sole property of PickNdell. PickNdell shall own exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
PickNdell and other PickNdell logos, designs, graphics, icons, scripts and service names are registered trademarks, trademarks or trade dress of PickNdell in the United States and/or other countries (collectively, the “PickNdell Marks”). If you provide Delivery Services as a Courier, PickNdell grants to you, during the term of this Agreement, and subject to your compliance with the terms and conditions of this Agreement, a limited, revocable, non-exclusive license to display and use the PickNdell Marks solely on the PickNdell stickers/decals, PickNdell Amp, and any other PickNdell-Branded items provided by PickNdell directly to you in connection with providing the Delivery Services ("License"). The License is non-transferable and non-assignable, and you shall not grant to any third party any right, permission, license or sublicense with respect to any of the rights granted hereunder without PickNdell’s prior written permission, which it may withhold in its sole discretion. The PickNdell logo (or any PickNdell Marks) may not be used in any manner that is likely to cause confusion, including but not limited to: use of a PickNdell Mark in a domain name or PickNdell referral code, or use of a PickNdell Mark as a social media handle or name, avatar, profile photo, icon, favicon, or banner. You may identify yourself as a Courier on the PickNdell Platform, but may not misidentify yourself as PickNdell, an employee of PickNdell, or a representative of PickNdell.
You agree that you will not: (1) create any materials that use the PickNdell Marks or any derivatives of the PickNdell Marks as a trademark, service mark, trade name or trade dress, other than as expressly approved by PickNdell in writing; (2) use the PickNdell Marks in any way that tends to impair their validity as proprietary trademarks, service marks, trade names or trade dress, or use the PickNdell Marks other than in accordance with the terms, conditions and restrictions herein; (3) take any other action that would jeopardize or impair PickNdell’s rights as owner of the PickNdell Marks or the legality and/or enforceability of the PickNdell Marks, including, challenging or opposing PickNdell’s ownership in the PickNdell Marks; (4) apply for trademark registration or renewal of trademark registration of any of the PickNdell Marks, any derivative of the PickNdell Marks, any combination of the PickNdell Marks and any other name, or any trademark, service mark, trade name, symbol or word which is similar to the PickNdell Marks; (5) use the PickNdell Marks on or in connection with any product, service or activity that is in violation of any law, statute, government regulation or standard.
You agree you will not rent, lease, lend, sell, or otherwise redistribute the PickNdell Courier amp, or manufacture, produce, print, sell, distribute, purchase, or display counterfeit/inauthentic PickNdell Courier amps or other PickNdell Marks or (including but not limited to signage, stickers, apparel, or decals) from any source other than directly from PickNdell.
Violation of any provision of this License may result in immediate termination of the License, in PickNdell’s sole discretion, a takedown request sent to the appropriate ISP, or social media platform, and/or a Uniform Domain-Name Dispute-Resolution Policy Proceeding (or equivalent proceeding). If you create any materials (physical or digital) bearing the PickNdell Marks (in violation of this Agreement or otherwise), you agree that upon their creation PickNdell exclusively owns all right, title and interest in and to such materials, including any modifications to the PickNdell Marks or derivative works based on the PickNdell Marks or PickNdell copyrights. You further agree to assign any interest or right you may have in such materials to PickNdell, and to provide information and execute any documents as reasonably requested by PickNdell to enable PickNdell to formalize such assignment.
PickNdell respects the intellectual property of others, and expects Users to do the same. If you believe, in good faith, that any materials on the PickNdell Platform infringe upon your copyrights, please contact us.
The following disclaimers are made on behalf of PickNdell, our affiliates, subsidiaries, parents, successors and assigns, and each of our respective officers, directors, employees, agents, and shareholders.
PickNdell does not provide delivery services, and PickNdell is not a delivery carrier. PickNdell is not a common carrier or public carrier. It is up to the Courier to decide whether or not to offer a delivery to a Sender contacted through the PickNdell Platform, and it is up to the Sender to decide whether or not to accept a delivery from any Courier contacted through the PickNdell Platform. We cannot ensure that a Courier or Sender will complete an arranged delivery service. We have no control over the quality or safety of the delivery that occurs as a result of the Delivery Services.
PickNdell is not responsible for the parcel being delivered, not to its condition at the end of the delivery, or to its delivery at all.
The PickNdell Platform is provided on an “as is” basis and without any warranty or condition, express, implied or statutory. We do not guarantee and do not promise any specific results from use of the PickNdell Platform and/or the Delivery Services, including the ability to provide or receive Delivery Services at any given location or time. To the fullest extent permitted by law, we specifically disclaim any implied warranties of title, merchantability, fitness for a particular purpose and non-infringement. Some states do not allow the disclaimer of implied warranties, so the foregoing disclaimer may not apply to you.
We do not warrant that your use of the PickNdell Platform or Delivery Services will be accurate, complete, reliable, current, secure, uninterrupted, always available, or error- free, or will meet your requirements, that any defects in the PickNdell Platform will be corrected, or that the PickNdell Platform is free of viruses or other harmful components. We disclaim liability for, and no warranty is made with respect to, connectivity and availability of the PickNdell Platform or Delivery Services.
We cannot guarantee that each Sender is who he or she claims to be. Please use common sense when using the PickNdell Platform and Delivery Services, including practice caution while delivering suspicious parcels, looking at the photos of the Courier or Sender you have matched with to make sure it is the same individual you see in person. Please note that there are also risks of dealing with underage persons or people acting under false pretense to deliver illegal materials and products, and we do not accept responsibility or liability for any content, communication or other use or access of the PickNdell Platform by persons under the age of 18 in violation of this Agreement. We encourage you to communicate directly with each potential Courier or Sender prior to engaging in an arranged transportation service.
PickNdell is not responsible for the conduct, whether online or offline, of any User of the PickNdell Platform or Delivery Services. You are solely responsible for your interactions with other Users. We do not procure insurance for, nor are we responsible for, personal belongings left in the car by Couriers or Senders. By using the PickNdell Platform and participating in the Delivery Services, you agree to accept such risks and agree that PickNdell is not responsible for the acts or omissions of Users on the PickNdell Platform or participating in the Delivery Services.
You are responsible for the use of your User account and PickNdell expressly disclaims any liability arising from the unauthorized use of your User account. Should you suspect that any unauthorized party may be using your User account or you suspect any other breach of security, you agree to notify us immediately.
It is possible for others to obtain information about you that you provide, publish or post to or through the PickNdell Platform (including any profile information you provide), send to other Users, or share during the Delivery Services, and to use such information to harass or harm you. We are not responsible for the use of any personal information that you disclose to other Users on the PickNdell Platform or through the Delivery Services. Please carefully select the type of information that you post on the PickNdell Platform or through the Delivery Services or release to others. We disclaim all liability, regardless of the form of action, for the acts or omissions of other Users (including unauthorized users, or “hackers”).
Opinions, advice, statements, offers, or other information or content concerning PickNdell or made available through the PickNdell Platform, but not directly by us, are those of their respective authors, and should not necessarily be relied upon. Such authors are solely responsible for such content. Under no circumstances will we be responsible for any loss or damage resulting from your reliance on information or other content posted by third parties, whether on the PickNdell Platform or otherwise. We reserve the right, but we have no obligation, to monitor the materials posted on the PickNdell Platform and remove any such material that in our sole opinion violates, or is alleged to violate, the law or this agreement or which might be offensive, illegal, or that might violate the rights, harm, or threaten the safety of Users or others.
Location data provided by the PickNdell Platform is for basic location purposes only and is not intended to be relied upon in situations where precise location information is needed or where erroneous, inaccurate or incomplete location data may lead to death, personal injury, property or environmental damage. Neither PickNdell, nor any of its content providers, guarantees the availability, accuracy, completeness, reliability, or timeliness of location data tracked or displayed by the PickNdell Platform. Any of your Information, including geolocational data, you upload, provide, or post on the PickNdell Platform may be accessible to PickNdell and certain Users of the PickNdell Platform.
PickNdell advises you to use the PickNdell Platform with a data plan with unlimited or very high data usage limits, and PickNdell shall not be responsible or liable for any fees, costs, or overage charges associated with any data plan you use to access the PickNdell Platform.
You will defend, indemnify, and hold PickNdell including our affiliates, subsidiaries, parents, successors and assigns, and each of our respective officers, directors, employees, agents, or shareholders harmless from any claims, actions, suits, losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of your use of the PickNdell Platform and participation in the Delivery Services, including: (1) your breach of this Agreement or the documents it incorporates by reference; (2) your violation of any law or the rights of a third party, including, Couriers, Senders, other motorists, and pedestrians, as a result of your own interaction with such third party; (3) any allegation that any materials that you submit to us or transmit through the PickNdell Platform or to us infringe or otherwise violate the copyright, trademark, trade secret or other intellectual property or other rights of any third party; (4) your ownership, use or operation of a motor vehicle or passenger vehicle, including your provision of Delivery Services as a Courier; and/or (5) any other activities in connection with the Delivery Services. This indemnity shall be applicable without regard to the negligence of any party, including any indemnified person.
IN NO EVENT WILL PICKNDELL, INCLUDING OUR AFFILIATES, SUBSIDIARIES, PARENTS, SUCCESSORS AND ASSIGNS, AND EACH OF OUR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR SHAREHOLDERS (COLLECTIVELY “PICKNDELL” FOR PURPOSES OF THIS SECTION), BE LIABLE TO YOU FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, CONSEQUENTIAL, OR INDIRECT DAMAGES (INCLUDING DAMAGES FOR DELETION, CORRUPTION, LOSS OF DATA, LOSS OF PROGRAMS, FAILURE TO STORE ANY INFORMATION OR OTHER CONTENT MAINTAINED OR TRANSMITTED BY THE PICKNDELL PLATFORM, SERVICE INTERRUPTIONS, OR FOR THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES) ARISING OUT OF OR IN CONNECTION WITH THE PICKNDELL PLATFORM, THE DELIVERY SERVICE, OR THIS AGREEMENT, HOWEVER ARISING INCLUDING NEGLIGENCE, EVEN IF WE OR OUR AGENTS OR REPRESENTATIVES KNOW OR HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE PickNdell PLATFORM MAY BE USED BY YOU TO REQUEST AND SCHEDULE DELIVERY, GOODS, OR OTHER SERVICES WITH THIRD PARTY PROVIDERS, BUT YOU AGREE THAT PICKNDELL HAS NO RESPONSIBILITY OR LIABILITY TO YOU RELATED TO ANY DELIVERY, GOODS OR OTHER SERVICES PROVIDED TO YOU BY THIRD PARTY PROVIDERS OTHER THAN AS EXPRESSLY SET FORTH IN THIS AGREEMENT. CERTAIN JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
This Agreement is effective upon your creation of a User account. This Agreement may be terminated: a) by User, without cause, upon seven (7) days’ prior written notice to PickNdell; or b) by either Party immediately, without notice, upon the other Party’s material breach of this Agreement, including but not limited to any breach of Section 9 or breach of Section 10(a) through (i) of this Agreement. In addition, PickNdell may terminate this Agreement or deactivate your User account immediately in the event: (1) you no longer qualify to provide Delivery Services or to operate the approved vehicle under applicable law, rule, permit, ordinance or regulation; (2) you fall below PickNdell’s star rating or cancellation threshold; (3) PickNdell has the good faith belief that such action is necessary to protect the safety of the PickNdell community or third parties, provided that in the event of a deactivation pursuant to (1)-(3) above, you will be given notice of the potential or actual deactivation and an opportunity to attempt to cure the issue to PickNdell’s reasonable satisfaction prior to PickNdell permanently terminating the Agreement. For all other breaches of this Agreement, you will be provided notice and an opportunity to cure the breach. If the breach is cured in a timely manner and to PickNdell’s satisfaction, this Agreement will not be permanently terminated. Sections 2, 6, 7 (with respect to the license), 11-12, 14-19, and 21 shall survive any termination or expiration of this Agreement.
YOU AND PICKNDELL MUTUALLY AGREE TO WAIVE OUR RESPECTIVE RIGHTS TO RESOLUTION OF DISPUTES IN A COURT OF LAW BY A JUDGE OR JURY AND AGREE TO RESOLVE ANY DISPUTE BY ARBITRATION, as set forth below. This agreement to arbitrate (“Arbitration Agreement”) is governed by the Federal Arbitration Act and survives after the Agreement terminates or your relationship with PickNdell ends. ANY ARBITRATION UNDER THIS AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED. Except as expressly provided below, this Arbitration Agreement applies to all Claims (defined below) between you and PickNdell, including our affiliates, subsidiaries, parents, successors and assigns, and each of our respective officers, directors, employees, agents, or shareholders. This Arbitration Agreement also applies to claims between you and PickNdell’s service providers, including but not limited to background check providers and payment processors; and such service providers shall be considered intended third party beneficiaries of this Arbitration Agreement.
Except as expressly provided below, ALL DISPUTES AND CLAIMS BETWEEN US (EACH A “CLAIM” AND COLLECTIVELY, “CLAIMS”) SHALL BE EXCLUSIVELY RESOLVED BY BINDING ARBITRATION SOLELY BETWEEN YOU AND PICKNDELL. These Claims include, but are not limited to, any dispute, claim or controversy, whether based on past, present, or future events, arising out of or relating to: this Agreement and prior versions thereof (including the breach, termination, enforcement, interpretation or validity thereof), the PickNdell Platform, the Delivery Services, rental or use of bikes or scooters through the PickNdell Platform, PickNdell promotions, gift card, referrals or loyalty programs, any other goods or services made available through the PickNdell Platform, your relationship with PickNdell, the threatened or actual suspension, deactivation or termination of your User Account or this Agreement, background checks performed by or on PickNdell’s behalf, payments made by you or any payments made or allegedly owed to you, any promotions or offers made by PickNdell, any city, county, state or federal wage-hour law, trade secrets, unfair competition, compensation, breaks and rest periods, expense reimbursement, wrongful termination, discrimination, harassment, retaliation, fraud, defamation, emotional distress, breach of any express or implied contract or 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; and claims arising under the Uniform Trade Secrets Act, Civil Rights Act of 1964, Americans With Disabilities Act, Age Discrimination in Employment Act, Older Workers Benefit Protection Act, Family Medical Leave Act, Fair Labor Standards Act, Employee Retirement Income Security Act (except for individual claims for employee benefits under any benefit plan sponsored by PickNdell and covered by the Employee Retirement Income Security Act of 1974 or funded by insurance), and state statutes, if any, addressing the same or similar subject matters, and all other federal and state statutory and common law claims. All disputes concerning the arbitrability of a Claim (including disputes about the scope, applicability, enforceability, revocability or validity of the Arbitration Agreement) shall be decided by the arbitrator, except as expressly provided below.
BY AGREEING TO ARBITRATION, YOU UNDERSTAND THAT YOU AND PICKNDELL ARE WAIVING THE RIGHT TO SUE IN COURT OR HAVE A JURY TRIAL FOR ALL CLAIMS, EXCEPT AS EXPRESSLY OTHERWISE PROVIDED IN THIS ARBITRATION AGREEMENT. This Arbitration Agreement is intended to require arbitration of every claim or dispute that can lawfully be arbitrated, except for those claims and disputes which by the terms of this Arbitration Agreement are expressly excluded from the requirement to arbitrate.
YOU UNDERSTAND AND AGREE THAT YOU AND PICKNDELL MAY EACH BRING CLAIMS IN ARBITRATION AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY AND NOT ON A CLASS, COLLECTIVE ACTION, OR REPRESENTATIVE BASIS (“CLASS ACTION WAIVER”). YOU UNDERSTAND AND AGREE THAT YOU AND PickNdell BOTH ARE WAIVING THE RIGHT TO PURSUE OR HAVE A DISPUTE RESOLVED AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, COLLECTIVE OR REPRESENTATIVE PROCEEDING. NOTWITHSTANDING THE FOREGOING, THIS SUBSECTION (B) SHALL NOT APPLY TO REPRESENTATIVE PRIVATE ATTORNEYS GENERAL ACT CLAIMS BROUGHT AGAINST PickNdell, WHICH ARE ADDRESSED SEPARATELY IN SECTION 17(C).
The arbitrator shall have no authority to consider or resolve any Claim or issue any relief on any basis other than an individual basis. The arbitrator shall have no authority to consider or resolve any Claim or issue any relief on a class, collective, or representative basis. 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.
Notwithstanding any other provision of this Agreement, the Arbitration Agreement or the AAA Rules, disputes regarding the scope, applicability, enforceability, revocability or validity of the Class Action Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. In any case in which: (1) the dispute is filed as a class, collective, or representative action and (2) there is a final judicial determination that the Class Action Waiver is unenforceable with respect to any Claim or any particular remedy for a Claim (such as a request for public injunctive relief), then that Claim or particular remedy (and only that Claim or particular remedy) shall be severed from any remaining claims and/or remedies and may be brought in a civil court of competent jurisdiction, but the Class Action Waiver shall be enforced in arbitration on an individual basis as to all other Claims or remedies to the fullest extent possible.
Notwithstanding any other provision of this Agreement or the Arbitration Agreement, to the fullest extent permitted by law: (1) you and PickNdell agree not to bring a representative action on behalf of others under the Private Attorneys General Act of 2004 (“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 the California PAGA, both you and PickNdell agree that any such dispute 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”). 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 litigation of those Claims shall be stayed pending the outcome of any individual Claims in arbitration.
Any arbitration conducted pursuant to this Arbitration Agreement shall be administered by the American Arbitration Association (“AAA”) pursuant to its Consumer Arbitration Rules that are in effect at the time the arbitration is initiated, as modified by the terms set forth in this Agreement. Copies of these rules can be obtained at the AAA’s website (www.adr.org) (the “AAA Rules”) or by calling the AAA at 1-800-778-7879. Notwithstanding the foregoing, if requested by you and if proper based on the facts and circumstances of the Claims presented, the arbitrator shall have the discretion to select a different set of AAA Rules, but in no event shall the arbitrator consolidate more than one person’s Claims, or otherwise preside over any form of representative, collective, or class proceeding. The parties may select a different arbitration administrator upon mutual written agreement.
As part of the arbitration, both you and PickNdell will have the opportunity for reasonable discovery of non-privileged information that is relevant to the Claim. The arbitrator may award any individualized remedies that would be available in court. 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.
The arbitrator will decide the substance of all claims in accordance with applicable law, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different Senders or Couriers, but is bound by rulings in prior arbitrations involving the same Sender or Courier to the extent required by applicable law. The arbitrator’s award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof, provided that any award may be challenged in a court of competent jurisdiction.
The payment of filing and arbitration fees will be governed by the relevant AAA Rules subject to the following modifications:
Unless you and PickNdell agree otherwise, any arbitration hearings between PickNdell and a Sender will take place in the county of your billing address, and any arbitration hearings between PickNdell and a Courier will take place in the county in which the Courier provides Delivery Services. If AAA arbitration is unavailable in your county, the arbitration hearings will take place in the nearest available location for a AAA arbitration. Your right to a hearing will be determined by the AAA Rules.
This Arbitration Agreement shall not require arbitration of the following types of claims: (1) small claims actions brought on an individual basis that are within the scope of such small claims court’s jurisdiction; (2) a representative action brought on behalf of others under PAGA or other private attorneys general acts, to the extent the representative PAGA Waiver in Section 17(c) of such action is deemed unenforceable by a court of competent jurisdiction under applicable law not preempted by the FAA; (3) claims for workers’ compensation, state disability insurance and unemployment insurance benefits; (4) claims that may not be subject to arbitration as a matter of generally applicable law not preempted by the FAA; and (5) individual claims of sexual assault or sexual harassment in connection with the use of the PickNdell Platform or Delivery Services. Where these claims are brought in a court of competent jurisdiction, PickNdell will not require arbitration of those claims. PickNdell's agreement not to require arbitration of these claims does not waive the enforceability of any other provision of this Arbitration Agreement (including without limitation the waivers provided in Section 17(b)), or of the enforceability of this Arbitration Agreement as to any other dispute, claim, or controversy.
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 (“NLRB”), or Office of Federal Contract Compliance Programs, or 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 in order to fulfill the party's obligation to exhaust administrative remedies before making a claim in arbitration However, should you bring an administrative claim, you may only seek or recover money damages of any type pursuant to this Arbitration Provision, and you knowingly and voluntarily waive the right to seek or recover money damages of any type pursuant to any administrative complaint, except for a complaint issued by the NLRB. Should you participate in an NLRB proceeding, you may only recover money damages if such recovery does not arise from or relate to a claim previously adjudicated under this Arbitration Provision or settled by you. Similarly, you may not recover money damages under this Arbitration Provision if you have already adjudicated such claim with the NLRB. Nothing in this Agreement or Arbitration Agreement prevents your participation in an investigation by a government agency of any report, claim or charge otherwise covered by this Arbitration Provision.
In addition to the severability provisions in subsections (b) and (c) above, in the event that 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.
If you are a member of a putative class in a lawsuit against PickNdell involving Courier Claims and a Motion for Preliminary Approval of a Settlement has been filed with the court in that lawsuit prior to this Agreement’s effective date (a “Pending Settlement Action”), then this Arbitration Agreement shall not apply to your Courier Claims in that particular class action. Instead, your Courier Claims in that Pending Settlement 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.
As a Courier or Courier applicant, you may opt out of the requirement to arbitrate Courier Claims defined in Section 17(e)(3) (except as limited by Section 17(i) above) pursuant to the terms of this subsection if you have not previously agreed to an arbitration provision in PickNdell’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 provision in the manner specified below, but opting out of this arbitration provision has no effect on any previous, other, or future arbitration agreements that you may have with PickNdell. If you have not previously agreed to such an arbitration provision and do not wish to be subject to this Arbitration Agreement with respect to Courier Claims, you may opt out of arbitration with respect to such Courier Claims, other than those in a Pending Settlement Action, by notifying PickNdell in writing of your desire to opt out of arbitration for such Courier Claims, which writing must be dated, signed and delivered by electronic mail to arbitrationoptout@PickNdell.com.
Cases have been filed against PickNdell and may be filed in the future involving Courier Claims. You should assume that there are now, and may be in the future, lawsuits against PickNdell alleging class, collective, and/or representative Courier Claims in which the plaintiffs seek to act on your behalf, and which, if successful, could result in some monetary recovery to you. But if you do agree to arbitration of Courier Claims with PickNdell under this Arbitration Agreement, you are agreeing in advance that you will bring all such claims, and seek all monetary and other relief, against PickNdell in an individual arbitration, except for the Courier Claims that are part of a Pending Settlement Action. You are also agreeing in advance that you will not participate in, or seek to recover monetary or other relief, for such claims in any court action or class, collective, and/or representative action. You have the right to consult with counsel of your choice concerning this Arbitration Agreement and you will not be subject to retaliation if you exercise your right to assert claims or opt- out of any Courier Claims under this Arbitration Agreement.
Before initiating any arbitration or proceeding, you and PickNdell may agree to first attempt to negotiate any dispute, claim or controversy between the parties informally for 30 days, unless this time period is mutually extended by you and PickNdell. A party who intends to seek negotiation under this subsection must first send to the other a written notice of the dispute (“Notice”). The Notice must (1) describe the nature and basis of the claim or dispute; and (2) set forth the specific relief sought. All offers, promises, conduct and statements, whether oral or written, made in the course of the negotiation by any of the parties, their agents, employees, and attorneys are confidential, privileged and inadmissible for any purpose, including as evidence of liability or for impeachment, in arbitration or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the negotiation.
You agree not to use any technical, financial, strategic and other proprietary and confidential information relating to PickNdell’s business, operations and properties, information about a User made available to you in connection with such User’s use of the Platform, which may include the User’s name, pick-up location, contact information and photo (“Confidential Information”) disclosed to you by PickNdell for your own use or for any purpose other than as contemplated herein. You shall not disclose or permit disclosure of any Confidential Information to third parties, and you agree not to store separate and outside of the PickNdell Platform any User Information obtained from the PickNdell Platform. As a Courier, you understand that some of Sender Information you receive may be protected by federal and/or state confidentiality laws, such as the Health Information Portability and Accountability Act of 1996 ("HIPAA"), governing the privacy and security of protected (patient) health information. In the event that you know a Sender, you should not disclose to anyone the identity of the Sender or the location that you picked up, or dropped off the Sender as this could violate HIPAA. You understand that any violation of the Agreement's confidentiality provisions may violate HIPAA or state confidentiality laws and could result in civil or criminal penalties against you. You agree to take all reasonable measures to protect the secrecy of and avoid disclosure or use of Confidential Information of PickNdell in order to prevent it from falling into the public domain. Notwithstanding the above, you shall not have liability to PickNdell with regard to any Confidential Information which you can prove: was in the public domain at the time it was disclosed by PickNdell or has entered the public domain through no fault of yours; was known to you, without restriction, at the time of disclosure, as demonstrated by files in existence at the time of disclosure; is disclosed with the prior written approval of PickNdell; becomes known to you, without restriction, from a source other than PickNdell without breach of this Agreement by you and otherwise not in violation of PickNdell’s rights; or is disclosed pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided, however, that You shall provide prompt notice of such court order or requirement to PickNdell to enable PickNdell to seek a protective order or otherwise prevent or restrict such disclosure.
As a Courier on the PickNdell Platform, you acknowledge and agree that you and PickNdell are in a direct business relationship, and the relationship between the parties under this Agreement is solely that of independent contracting parties. You and PickNdell expressly agree that (1) this is not an employment agreement and does not create an employment relationship between you and PickNdell; and (2) no joint venture, franchisor- franchisee, partnership, or agency relationship is intended or created by this Agreement. You have no authority to bind PickNdell, and you undertake not to hold yourself out as an employee, agent or authorized representative of PickNdell.
PickNdell does not, and shall not be deemed to, direct or control you generally or in your performance under this Agreement specifically, including in connection with your provision of Delivery Services, your acts or omissions, or your operation and maintenance of your vehicle. You retain the sole right to determine when, where, and for how long you will utilize the PickNdell Platform. You retain the option to accept or to decline or ignore a Sender’s request for Delivery Services via the PickNdell Platform, or to cancel an accepted request for Delivery Services via the PickNdell Platform, subject to PickNdell’s then-current cancellation policies. With the exception of any signage required by law or permit/license rules or requirements, PickNdell shall have no right to require you to: (a) display PickNdell’s names, logos or colors on your vehicle(s); or (b) wear a uniform or any other clothing displaying PickNdell’s names, logos or colors. You acknowledge and agree that you have complete discretion to provide Delivery Services or otherwise engage in other business or employment activities.
In addition to connecting Senders with Couriers, the PickNdell Platform may enable Users to provide or receive services from other third parties. For example, Users may be able to use the PickNdell Platform to plan and reserve deliveries on public transportation, take a delivery in an autonomous vehicle provided by a third party, rent vehicles, or obtain financial services provided by third parties (collectively, the “Other Services”). You understand that the Other Services are subject to the terms and pricing of the third-party provider. If you choose to purchase Other Services through the PickNdell Platform, you authorize PickNdell to charge your payment method on file according to the pricing terms set by the third-party provider. You agree that PickNdell is not responsible and may not be held liable for the Other Services or the actions or omissions of the third-party provider. Such Other Services may not be investigated, monitored or checked for accuracy, appropriateness, or completeness by us, and we are not responsible for any Other Services accessed through the PickNdell Platform.
Except as provided in Section 17, this Agreement shall be governed by the laws of the State of Israel without regard to choice of law principles. This choice of law provision is only intended to specify the use of Israel law to interpret this Agreement and is not intended to create any other substantive right to non- Israel to assert claims under Israel law whether by statute, common law, or otherwise. If any provision of this Agreement is or becomes invalid or non- binding, the parties shall remain bound by all other provisions of this Agreement. In that event, the parties shall replace the invalid or non-binding provision with provisions that are valid and binding and that have, to the greatest extent possible, a similar effect as the invalid or non-binding provision, given the contents and purpose of this Agreement. You agree that this Agreement and all incorporated agreements may be automatically assigned by PickNdell, in our sole discretion by providing notice to you. Except as explicitly stated otherwise, any notices to PickNdell shall be given by certified mail, postage prepaid and return receipt requested to Actappon, Ltd., 30 Kibbutz Galuyot Street, Even Yehuda, 4051530 Israel. Any notices to you shall be provided to you through the PickNdell Platform or given to you via the email address or physical you provide to PickNdell during the registration process. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. The words “include”, “includes” and “including” are deemed to be followed by the words “without limitation”. A party’s failure to act with respect to a breach by the other party does not constitute a waiver of the party’s right to act with respect to subsequent or similar breaches. This Agreement sets forth the entire understanding and agreement between you and PickNdell with respect to the subject matter hereof and supersedes all previous understandings and agreements between the parties, whether oral or written.
If you have any questions regarding the PickNdell Platform or Delivery Services, please contact us.
Actappon Ltd., PO: 514549288
Kibbutz Galuyot Street
Even Yehuda, 4051530