Last updated: November 3, 2022
YOU SHOULD REVIEW THIS AGREEMENT IN ITS ENTIRETY. YOU ACKNOWLEDGE YOUR ACCEPTANCE OF THIS AGREEMENT BY REGISTERING TO BECOME A USER OR BY BROWSING OR OTHERWISE USING THE VEHO PLATFORM. YOU WILL BE LEGALLY BOUND BY THESE TERMS. IF YOU DO NOT ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT REGISTER, BROWSE OR OTHERWISE USE THE PLATFORM.
Except as provided in the “Arbitration Agreement and Class Action Waiver” in Section 16 below, and with the exception of claims already asserted in arbitration, Spruce reserves the right to change the Driver Partner Terms at any time in our sole business discretion. Please check these terms regularly for changes. Your continued use of the Platform following the posting of any changes to the Driver Partner Terms will constitute your acceptance of and agreement to those changes.
PLEASE READ THIS AGREEMENT CAREFULLY. THIS AGREEMENT CONTAINS A MANDATORY INDIVIDUAL ARBITRATION AGREEMENT, WITH A CLASS ACTION WAIVER, THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE COVERED DISPUTES, RATHER THAN JURY TRIALS OR COURT TRIALS.
1. This Spruce Driver Partner Terms and Conditions (“Driver Partner Terms”) is an agreement between Spruce Transport Operations LLC (“Spruce”, “the Company”, “we”, “us” or “our”), a federally-licensed motor carrier that enables individual drivers seeking to provide delivery services (“Driver Partners”, “you” or “your”) to provide such services via a proprietary online platform operated by Veho Tech, Inc. (“Veho”) that connects Driver Partners with entities seeking such services (“Clients”), through Veho’s website found at https://shipveho.com/ and all related sub-domains, and all related tools and services or through downloadable mobile or other applications that Veho makes available to Spruce, including without limitation any content, functionality and services offered on or through Veho’s website (collectively, the “Platform”).
Spruce and Veho have entered into a separate agreement that provides Spruce’s employees, contractors, and agents access to Veho’s platform, services, and tools. By executing this Agreement, any prior agreements between Veho and Driver Partners are extinguished and any such agreements are deemed terminated. Driver Partners do not have a contractual relationship with Veho, but may rely on Spruce’s license to access the Veho technology
2. These Driver Partner Terms are entered into by and between Spruce and Driver Partner. These Driver Partner Terms, which include any supplemental agreements, addenda, and documents they expressly incorporate by reference, govern your access and use of Veho’s Platform through your agreement with Spruce.
2.1 You must read, agree to, and accept all of the terms and conditions contained in these Driver Partner Terms in order to use Veho’s Platform. By browsing, using, signing up for, downloading, or otherwise accessing any part of Veho’s Platform, or by clicking to accept or agree to the Driver Partner Terms when this option is made available to you, you accept and agree to be bound and abide by these Driver Partner Terms. If you do not want to agree to these Driver Partner Terms, you must not browse, access or otherwise use Veho’s Platform. If you are using Veho’s Platform on behalf of an organization, you represent that you have the right to bind such organization to these Driver Partner Terms, and the terms “Driver Partner” and “you” will include both you, the individual user, and such organization.
2.2 This Platform is offered and available to Driver Partners who are 25 years of age or older. By using this Platform, you represent and warrant that you are of legal age to form a binding contract with Spruce and meet all of the foregoing eligibility requirements. If you do not meet all of these requirements, you must not access or use the Platform.
3. Independent Contractor Relationship Between Driver Partners and Clients
3.1 Spruce is a federally-licensed motor carrier that enables Driver Partners to provide delivery services to various third party’s by accessing Veho’s Platform. The Veho Platform provides access to a qualified marketplace platform under laws recognizing such platforms for businesses that operate a digital website or application that facilitates the provision of services by qualified marketplace contractors to individuals or entities seeking such services. Nothing in these Driver Partner Terms is intended or should be construed to create an employer-employee relationship, partnership, joint venture, joint employment relationship, single or integrated enterprise or franchisor/franchisee relationship between Spruce, Veho and/or Driver Partner.
DRIVER PARTNER UNDERSTANDS AND AGREES THAT, IN PERFORMING SERVICES OR ANY OBLIGATION UNDER THESE DRIVER PARTNER TERMS, DRIVER PARTNER SHALL BE AND WILL REMAIN AT ALL TIMES AN INDEPENDENT CONTRACTOR IN FACT AND LAW AND NOT AN EMPLOYEE OF SPRUCE, VEHO OR CLIENT.
3.2 Driver Partner agrees that they will not take any position with respect to or on any tax return or application for benefits, or in any proceeding directly or indirectly involving Spruce that is inconsistent with Driver Partner being an independent contractor (and not an employee) of Spruce. Driver Partner is not an agent of Spruce and Driver Partner is not authorized, and must not represent to any third party that Driver Partner is authorized to make any commitment or otherwise act on behalf of Spruce. Similarly, as Driver Partner is simply accessing Veho’s Platform for the purposes of providing services through Spruce, Driver Partner is not a contractor or employee of Veho and will not represent otherwise.
3.3 Driver Partners will provide all equipment, labor, and materials that may be needed to perform any services pursuant to an engagement. Spruce will not provide any equipment, labor, or materials that may be needed for performing services pursuant to any engagement. Further, Driver Partners are solely responsible for determining which engagements they will choose to accept, how frequently they accept engagements, the duration of the engagement acceptable to them, the terms of any counterproposal and the manner in which they will provide the services sought. Spruce does not guarantee the Driver Partner any minimum amount of engagements. Spruce facilitates Client’s payment to Driver Partner by setting a fee for each route that a Driver Partner may choose to accept. Spruce does not dictate the time of performance. Spruce shall not provide Driver Partner with any training or direction with regard to services provided and will have no control over the manner in which services are provided or the timing and location of the provision of services. Spruce does not provide any uniforms to Driver Partners. Spruce does not provide expense reimbursement to Driver Partners. Driver Partner has the right to determine the manner in which services will be provided to Client consistent with Driver Partner’s experience and specialized skills.
3.4 Nothing in these Driver Partner Terms is intended to prohibit or discourage (nor should be construed as prohibiting or discouraging) any Driver Partner from engaging in any other business activities, services or projects that are separate and distinct from any business activities that Driver Partner may conduct through the Platform. Spruce expects Driver Partners provide similar services through other platforms and for other parties. Spruce expressly acknowledges Driver Partner can earn income from other sources and expects Driver Partner will do so.
3.5 Further, nothing in this agreement is intended to prohibit or discourage (nor should be construed as prohibiting or discouraging) Driver Partner from using its employees and/or independent contractors to provide any services relating to Driver Partner’s completion of an engagement. Spruce will have no involvement in the hiring, selection or retention of any Driver Partner’s affiliate, employee, or subcontractor or in the terms of their employment, contract, or engagement with Driver Partner. As with Driver Partners themselves, Spruce will not provide a Driver Partner’s affiliate, employee, or subcontractor with any training or direction with regard to work performed or services provided and will have no control over the manner in which work or services are performed or the timing and location of the performance of work or services by Driver Partner’s affiliate, employee, or subcontractor. Spruce does not terminate the work during the term of these Driver Partner Terms unless the Driver Partner violates the terms of these Driver Partner Terms or fails to produce a result that meets the specifications of these Driver Partner Terms. Notwithstanding the foregoing, Spruce may request that Driver Partner discontinue using the services of a Driver Partner’s affiliate, employee, or subcontractor if they are perceived as presenting a safety risk or engage in unlawful conduct in connection with performing work or services in connection of an engagement. Spruce will not, however, screen or monitor the work of a Driver Partner’s affiliate, employee, or subcontractor, and the foregoing provision does not give and should not be construed as giving rise to any duty on the part of Spruce to screen or monitor the work of a Driver Partner’s affiliate, employee, or subcontractor or otherwise ensure that they are working/performing services in a safe and lawful manner.
3.6 Spruce does not provide a performance assessment to Driver Partners. Spruce does not oversee the actual work or instruct the Driver Partner as to how the work will be performed, or the method or process the Driver Partner uses to perform services. Driver Partner shall at all times comply with any and all laws, ordinances, statutes, executive orders and regulations, federal, state, county and municipal, insofar as applicable to Driver Partner’s performance of services under these Driver Partner Terms.
Without limiting the generality of the foregoing:
3.7 NO RIGHTS TO BENEFITS: DRIVER PARTNER UNDERSTANDS AND AGREES THAT, DUE TO ITS STATUS AS AN INDEPENDENT CONTRACTOR ENGAGED IN ITS OWN INDEPENDENTLY CONTROLLED AND OPERATED BUSINESS, THAT DRIVER PARTNER IS NOT ELIGIBLE FOR, NOR SHALL PARTICIPATE IN, ANY SPRUCE, VEHO, OR CLIENT PENSION PLAN, HEALTH OR DISABILITY PLAN, OR OTHER INSURANCE OR FRINGE BENEFIT PLAN OF ANY KIND.
AS AN INDEPENDENTLY CONTRACTING BUSINESS ENTITY, DRIVER PARTNER IS NOT ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS UNLESS UNEMPLOYMENT COMPENSATION COVERAGE IS PROVIDED BY THE DRIVER PARTNER OR SOME OTHER ENTITY, AND DRIVER PARTNER IS OBLIGATED TO PAY FEDERAL AND STATE INCOME TAX ON ANY MONEYS PAID PURSUANT TO ITS CONTRACTUAL RELATIONSHIP WITH SPRUCE, VEHO, OR CLIENT.
AS AN INDEPENDENTLY CONTRACTING BUSINESS ENTITY, DRIVER PARTNER IS NOT ENTITLED TO DRIVER PARTNERS’ COMPENSATION BENEFITS UNLESS DRIVER PARTNERS’ COMPENSATION COVERAGE IS PROVIDED BY THE DRIVER PARTNER OR SOME OTHER ENTITY.
3.8 Taxes and other Withholdings. For all purposes, including but not limited to the Federal Insurance Contributions Act, the Social Security Act, the Federal Unemployment Tax Act, income tax withholding requirements and all other federal, state and local laws, rules and regulations, Driver Partner is and will be treated as an independent contractor and not as a Spruce employee. Accordingly, Spruce will not withhold any employment taxes from any compensation paid to Driver Partner under these Driver Partner Terms, and Driver Partner will be solely responsible for the reporting and payment of all federal, state, and local taxes or contributions imposed or required under unemployment insurance, social security, medical insurance, income tax or other applicable laws, rules or regulations with respect to the performance or rendering of services through the Platform and/or under these Driver Partner Terms by Driver Partner, including any such taxes and other requirements applicable to a Driver Partner’s affiliate, employee, or subcontractor. Driver Partner agrees to indemnify, defend and hold Spruce harmless from any costs, expenses, penalties or damages (including attorney’s fees) arising from Driver Partner’s failure to properly pay such taxes or contributions and/or Spruce not withholding or remitting employment taxes or contributions relative to compensation paid to Driver Partner.
3.9 Insurance. As an independent contractor, Driver Partner (including any Driver Partner’s affiliate, employee, or subcontractor) is not covered by any insurance that may be provided by the Company to its employees, including, without limitation, health insurance, Driver Partners’ compensation insurance, general liability insurance, and automobile liability insurance. Instead, Driver Partner is solely and exclusively responsible for Driver Partner’s own insurance, including insurance for a Driver Partner’s affiliate, employee, or subcontractors. Specifically, in the event that Driver Partner is injured while working in the course and scope of an engagement, Driver Partner acknowledges and understands that Driver Partner (including any Driver Partner’s affiliate, employee, or subcontractor) will not be covered by any Driver Partners’ compensation insurance coverage that Spruce, Veho or Client may provide to its employees.
Under FMCSA regulations (49 C.F.R. Part 387) [ 1] issued pursuant to 49 U.S.C. § 13906, Spruce will maintain (through the purchase of insurance policies or an FMCSA-approved self-insurance program), at Spruce’s expense, public liability insurance (as defined in 49 C.F.R. § 387.5) at all times Driver Partner is operating a vehicle during a Delivery Period as defined in Article III of this agreement. Spruce may also maintain, at Spruce’s expense, cargo loss-and-damage insurance at all times the Driver Partner is operating a vehicle on behalf of Spruce. Spruce’s possession of public liability and/or cargo loss-and-damage insurance will in no way affect Driver Partner’s indemnity obligations to Spruce as provided for in this agreement. Spruce’s public liability insurance and cargo loss-and-damage insurance do not list Driver Partner either by class or individually, as additional insured. If Driver Partner wishes to insure Driver Partner against bodily-injury, property-damage, and environmental-restoration claims asserted directly against Driver Partner by an injured third party, Driver Partner must purchase and maintain Driver Partner’s own insurance policies covering such claims.
4. Agreement to Maintain Driver Partners’ Work Accident and other Insurance.
Driver Partner agrees that before entering into these Driver Partner Terms and at all times during the term of these Driver Partner Terms, Driver Partner will maintain proper Driver Partners’ workers’ compensation or occupational accident insurance coverage and any other insurance coverage (including coverage for including any Driver Partner’s affiliate, employee, or subcontractor) required in each jurisdiction in which Driver Partner performs any services. If required by the applicable jurisdiction, Driver Partner also agrees to maintain any other required insurance. Driver Partner will comply with all state Driver Partners’ workers’ compensation laws.
If allowed by state law and if validly obtained, Driver Partner may be eligible to opt out of the Driver Partners’ workers’ compensation requirements. If Driver Partner chooses to do so, Driver Partner must submit a Statement Affirming Exemption from Driver Partner’s Workers’ Compensation Coverage to Spruce in electronic form via the Platform. The current form of such statement can be found at the following link: https://shipveho.com/drive/safety/. Spruce may update the form to comply with Driver Partners’ workers’ compensation requirements in its sole discretion.
Driver Partner may either provide proof of Driver Partners’ workers’ compensation or occupational accident insurance to Spruce or may choose to purchase occupational accident insurance coverage through Spruce for a fee. Should Driver Partner choose to purchase coverage through Spruce, the Driver Partner also agrees that Spruce may collect that fee from any monies due Driver Partner for services provided. The current rates for occupational accident coverage will be clearly specified in the enrollment form, and shall be deducted in that amount on a per trip basis.
Driver Partner also agrees to maintain commercial general liability insurance coverage with combined policy limits of at least $1,000,000, and automobile liability insurance coverage with combined limits of at least $1,000,000, or such higher amounts or additional coverage as may be set forth in an engagement.
5. Accessing the Platform and Account Security. Based on the contractual relationship between Veho and Spruce, Veho reserves the right to discontinue or amend its Platform, and any service or material provided on the Platform, in its sole discretion without notice. Spruce and Veho will not be liable if for any reason all or any part of the Platform is unavailable at any time or for any period. From time to time, Veho may restrict access to some parts of the Platform, or the entire Platform, to Spruce, Clients, or Driver Partner. You are responsible for making all arrangements necessary for you to have access to the Platform, and ensuring that all persons who access the Platform through your internet connection are aware of these Driver Partner Terms and comply with them.
5.1 To access the Veho Platform, you may be asked to provide certain registration details or other information. It is a condition of your use of the Veho Platform that all the information you provide on the Veho Platform is correct, current and complete.
5.2 If you choose, or are provided with, a username, password or any other piece of information as part of our registration or security procedures, you must treat such information as confidential, and you must not disclose it to any other person or entity. You also acknowledge that your account is personal to you and agree not to provide any other person with access to this Platform or portions of it using your username, password or other security information. You agree to notify us immediately of any unauthorized access to or use of your username or password or any other breach of security. You also agree to ensure that you exit from your account at the end of each session. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record Your password or other personal information.
5.3 You are prohibited from registering and creating a new account under your name, an alternate name, a fake or borrowed name, or the name of any third party, even if you may be acting on behalf of the third party. You are further prohibited from engaging in any fraudulent activity involving the Platform or your accepted routes.
5.4 Based on the contractual relationship between Veho and Spruce, Veho has the right to disable any username, password or other identifier, whether chosen by you or provided by us, at any time in our sole discretion for any or no reason, including if, in our opinion, you have violated any provision of these Driver Partner Terms. In addition to limiting, terminating, or suspending your account, Veho and Spruce reserves the right to take appropriate legal action, including but without limitation pursuing arbitration, criminal, and injunctive redress.
5.5 You must keep all data of Clients and customers of Clients (“Customers”) received from Veho or Spruce confidential. You must not disclose any Customer or Client information to anyone or otherwise take any action to retain such data. Stated another way, you shall never use any Customer or Client data received from Veho or Spruce for any purpose other than completing a route.
5.6 You should exercise sound judgment to keep the device(s) you use for route information free from malicious or questionable applications or software. It is strongly recommended that you consider utilizing lockscreen protection.
5.7 You must notify Spruce support upon learning the device that you are using to perform a route has been lost or stolen during a time when Customer or Client data is open and available on the Veho Platform.
6. Third Parties; Food Safety. While performing delivery services to Spruce, you agree that you will not have any other person in the car with you, including but not limited to friends, partners, children unless they are assistants, helpers, or subcontractors providing Delivery Services through Spruce as well. You further agree that if you are delivering food or grocery items, consistent with health and safety standards, you will not have animals of any kind in the vehicle.
7. Consent to Monitor and Cell Phone Use. While performing delivery services for Spruce, you consent to digital location monitoring via the application. You agree that while performing delivery services under this contract, any and all cell phone use, both personal and professional, must be conducted in accordance with state and federal statutes.
8. Driver Safety. You agree that you must maintain the following: (1) a current and valid driver’s license and (2) an auto insurance policy where you are named insured that adheres to state minimum requirements. You agree that the vehicle you will use during delivery services is in safe, drivable condition, that adheres to the safety standards set by state or local regulations, and that you have the right to operate the vehicle
8.1 You agree to tell Spruce within 24 hours and before initiating any route with Spruce if any of the following occur or have occurred: (1) moving violations issued to you, (2) accidents that your vehicle or you are involved in; (3) changes in driver’s license status to include suspensions and renewals, or (4) changes in insurance carrier, coverage status, or amount of coverage.
9. Payment calculation. Driver Partner will be paid by the route, not by the hour. Prior to a route, Driver Partner acknowledges that he or she has reviewed the route pay, and that he or she will be paid for the successful delivery of the packages assigned regardless of how long the route takes.
In performing and accepting services under these Driver Partner Terms, Spruce and Driver Partner may exchange technical, product, financial, and business information that is confidential or proprietary to them (“Confidential Information”). Confidential Information shall be limited to information clearly marked as confidential or proprietary, or information that is disclosed verbally and identified as confidential or proprietary when disclosed.
Spruce and Driver Partner will hold all Confidential Information they receive from the other party in strict confidence and will only use it to perform their respective obligations and exercise their rights under these Driver Partner Terms. Confidential Information may only be disclosed to employees, agents, consultants, and professional advisors, including but not limited to Veho, who have a good faith need to know such information for the purposes of these Driver Partner Terms, provided the person receiving the information has a confidentiality obligation to the disclosing party that is at least as stringent as the confidentiality terms of these Driver Partner Terms. The receiving party shall protect and safeguard the Confidential Information against unauthorized disclosure by procedures no less stringent than those it uses for protecting its own confidential or proprietary information, and in any event by use of no less than a reasonable degree of care. Notwithstanding the foregoing, under no circumstances may you disclose Confidential Information consisting of customer or client information to any party other than Spruce, its affiliates, or assistants, helpers, or subcontractors also providing Delivery Services through Spruce.
These Driver Partner Terms impose no obligation with respect to information that: (a) was in the possession of, or was known by, the receiving party prior to its receipt from the discloser, without an obligation to maintain its confidentiality; (b) is or becomes generally known to the public without violation of these Driver Partner Terms; (c) was obtained by the receiving party from a third party having the right to disclose it, without an obligation to keep such information confidential; or (d) is independently developed by the receiving party without the use of Confidential Information.
Each party retains all intellectual property rights in and to its own Confidential Information.
The confidentiality provisions of these Driver Partner Terms shall survive its termination for a period of two (2) years, except for the obligations of the parties regarding any trade secret information which shall survive indefinitely.
10.6 Defend Trade Secrets Act. Driver Partner acknowledges receipt of this notice under 18 U.S.C § 1833(b)(1): An individual shall not be held criminally or civilly liable under any Federal or State trade secret law for disclosing a trade secret that (A) is made (i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (ii) solely to report or investigate a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.
11. Representations and Warranties. Spruce and Driver Partner each warrants and represents, as to themselves, that (a) they are duly organized, validly existing and in good standing under the laws of the respective jurisdictions in which it was formed (in the case of Driver Partners who are not individual persons) and engaged in its own independent trade or business prior to entering into this agreement; (b) they have full power and authority to execute, deliver, and perform these Driver Partner Terms; (c) these Driver Partner Terms have been duly authorized, executed, and delivered by them and are their legal, valid, and binding obligations in accordance with the terms herein; and (d) obligations under these Driver Partner Terms shall be performed in compliance with any obligations to third parties and all applicable law, rules, or regulations of any governmental entity or agency
12. Disclaimer of Warranties
You understand that Spruce cannot and does not guarantee or warrant that files available for downloading from the internet or the Veho Platform will be free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to our site for any reconstruction of any lost data. SPRUCE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE SERVICE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SERVICE OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY WEBSITE LINKED TO IT.
YOUR USE OF THE SPRUCE SERVICE AND/OR THE VEHO PLATFORM (COLLECTIVELY THE “SERVICE”), THEIR RESPECTIVE CONTENT AND ANY SERVICES OR ITEMS OBTAINED OR TRANSACTED THROUGH THE SERVICE IS AT YOUR OWN RISK. THE SERVICE, ITS CONTENT AND ANY SERVICES OR ITEMS OBTAINED OR TRANSACTED THROUGH THE SERVICE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. SPRUCE EXPRESSLY DISCLAIMS (i) ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT, AND ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. SPRUCE MAKES NO WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY OR AVAILABILITY OF THE SERVICE. WITHOUT LIMITING THE FOREGOING, SPRUCE DOES NOT REPRESENT OR WARRANT THAT THE SERVICE, ITS CONTENT OR ANY SERVICES OR ITEMS OBTAINED OR TRANSACTED THROUGH THE SERVICE WILL BE ACCURATE, RELIABLE, ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT THE SERVICE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT THE SERVICE OR ANY SERVICES OR ITEMS OBTAINED OR TRANSACTED THROUGH THE SERVICE WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.
SPRUCE MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OF THE SERVICE. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL INTERACTIONS WITH OTHER USERS OF THE SERVICE. SPRUCE HEREBY DISCLAIMS ALL LIABILITY FOR (i) ALL ACTS OR OMISSIONS OF USERS OF THE SERVICE OR THIRD PARTIES, AND (ii) ALL TRANSACTIONS BETWEEN USERS ARISING FROM INTERACTIONS ON THE PLATFORM. SPRUCE WILL NOT BE LIABLE FOR CUSTOMERS’ FAILURE TO PAY DRIVER PARTNERS FOR SERVICES TRANSACTED THROUGH THE SERVICE, OR FOR TAX LIABILITIES RELATING TO TRANSACTIONS BETWEEN USERS. SPRUCE WILL NOT BE LIABLE FOR, AND USERS SHALL BE SOLELY LIABLE FOR, THEIR COMPLIANCE WITH ALL TAX, ADVERTISING AND OTHER LAWS APPLICABLE TO THEIR TRANSACTIONS. SPRUCE DOES NOT GUARANTEE THAT CUSTOMERS SEEKING DRIVER PARTNERS WILL FIND APPROPRIATE DRIVER PARTNERS THROUGH THE SERVICE, OR THAT DRIVER PARTNERS SEEKING WORK THROUGH THE SERVICE WILL FIND APPROPRIATE PROJECTS OR CONTRACT OPPORTUNITIES.
THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
13. Limitation on Liability
IN NO EVENT WILL SPRUCE, ITS AFFILIATES OR ITS OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE SERVICE, ANY WEBSITES LINKED TO IT, ANY CONTENT ON THE SERVICE OR SUCH OTHER SERVICES OR ANY SERVICES OR ITEMS OBTAINED OR TRANSACTED THROUGH THE SERVICE OR SUCH OTHER SERVICES, INCLUDING ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, SPRUCE’S MAXIMUM AGGREGATE LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATING TO THESE TERMS OF SERVICE, THE SERVICE OR OUR PROPERTY, WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, SHALL BE LIMITED TO THE AMOUNTS PAID BY YOU TO SPRUCE FOR USE OF THE SERVICE IN THE PRIOR YEAR (OR, IF YOU ARE A NON-FEE PAYING USER, TO THE AMOUNT OF $10).
THE FOREGOING DOES NOT AFFECT ANY LIABILITY, WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
Driver Partner shall indemnify, defend, and hold Spruce, its licensors and their respective parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys, and agents, including but not limited to Veho, harmless from and against any and all claims, costs, damages, losses, liabilities and expenses, including reasonable legal fees and costs, arising out of or in connection with: (a) any claim based on any alleged misuse of the Platform by Driver Partner (including by any Driver Partner affiliate, employee, or subcontractor), or a claim that any user data infringes the copyright, trademark, or patent rights of any third party; (b) any alleged conduct which would constitute a breach of the representations and warranties of Driver Partner set forth herein, or other breach of this agreement; (c) violation of applicable law by Driver Partner or Driver Partner affiliate, employee, or subcontractor; (d) any claim based on the negligent or intentional acts by Driver Partner or Driver Partner affiliate, employee, or subcontractor; and (e) related to any project, including any claims by any third party or government agency that Driver Partner was misclassified as an independent contractor or employee of a Client, and any claim that Spruce was an employer or joint employer of Driver Partner and/or any Driver Partner affiliate, employee, or subcontractor, and related legal claims under any employment laws.
Further, Driver Partner shall indemnify, defend, and hold Spruce, its licensors and their respective parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys, and agents, including but not limited to Veho, harmless from and against any and all claims, costs, damages, losses, liabilities and expenses, including reasonable legal fees and costs, arising out of or in connection with Driver Partner’s employment, retention, engagement or use of an affiliate, employee, or subcontractor to provide any work/services in connection with the performance of services hereunder, including but not limited to: (1) any claim that Driver Partner misclassified any Driver Partner’s affiliate, employee, or subcontractor (under the Fair Labor Standards Act, the Internal Revenue Code, state wage and hour law or any other law); and (2) any claim that Spruce was an employer or joint employer of any Driver Partner’s affiliate, employee, or subcontractor under any employment or other law, including, but not limited to, the Fair Labor Standards Act, any state wage and hour law, Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Family Medical Leave Act and the National Labor Relations Act.
15. Governing Law
Other than the Arbitration Agreement and Class Action Waiver, which shall be governed by the laws described therein, all matters relating to the Platform and these Driver Partner Terms and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), shall be governed by and construed in accordance with the internal laws of the state in which the Driver Partner last performed services without giving effect to any choice or conflict of law provision or rule.
16. ARBITRATION AGREEMENT AND CLASS ACTION WAIVER
16.1 How This Agreement Applies. Spruce and Driver Partner mutually agree to resolve any and all covered justiciable disputes between the Parties exclusively through final and binding individual arbitration instead of a court or jury trial. Driver Partner also understands and agrees that this Arbitration Agreement and Class Action Waiver applies to any disputes that Driver Partner may have with Spruce, including Spruce’s licensors (specifically including Veho), clients, customers, and agents all of which are deemed third party beneficiaries of this Agreement. This Arbitration Agreement and Class Action Waiver is governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16) and evidences a transaction involving commerce. This Arbitration Agreement and Class Action Waiver applies to any and all claims arising out of or relating to the Driver Partner Terms, the Driver Partner’s classification as an independent contractor, Driver Partner’s provision of services, Driver Partner’s use of the Platform, any payments made or received by Driver Partner through the Platform or arising out of or relating to the acceptance or performance of services arranged through the Platform, the termination of these Driver Partner Terms, and all other aspects of the Driver Partner’s relationship (or the termination of its relationship) with Spruce, past, present or future, whether arising under federal, state or local statutory and/or common law, which Spruce may have against Driver Partner or which Driver Partner may have against Spruce and its owners, officers, employees or agents, including but not limited to Veho. If it is determined that the Federal Arbitration Act does not apply to any claims covered by this Arbitration Agreement and Class Action Waiver, the parties agree that the Delaware Uniform Arbitration Act applies to those claims, as Spruce is incorporated in Delaware. If it is determined that neither the Federal Arbitration Act nor the Delaware Uniform Arbitration Act applies, the parties agree that the law of the jurisdiction where the arbitration takes place will apply. Driver Partner and Spruce agree that the mutual obligations to arbitrate disputes provide adequate consideration for this Arbitration Agreement and Class Action Waiver.
The Arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability, or waiver of this Agreement. However, the preceding sentence does not apply to any claims under the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, and it does not apply to Section 16.4 below. Notwithstanding any other clause or language in this Agreement and/or any rules or procedures that might otherwise apply by virtue of this Agreement or any amendments and/or modifications to those rules, any claim that Section 16.4, or any portion of Section 16.4 is unenforceable, inapplicable, unconscionable, or void or voidable, will be determined only by a court of competent jurisdiction and not by an arbitrator.
If any claim(s) not covered under this Agreement above are combined with claims that are covered under this Agreement, to the maximum extent allowed under applicable law, the covered claims will be arbitrated and continue to be covered under this Agreement.
16.2 Limitations On How This Agreement Applies. The following claims are not covered under these Driver Partner Terms: (i) Driver Partners’ compensation benefits and claims for workers compensation benefits, state disability insurance and unemployment insurance benefits; however, it applies to discrimination or retaliation claims based upon seeking such benefits; (ii) claims for benefits under employee benefit plans covered by the Employee Retirement Income Security Act of 1974 (“ERISA”); (iii) disputes that an applicable federal statute expressly states cannot be arbitrated or subject to a pre-dispute arbitration agreement; and (iv) disputes that may not be subject to pre-dispute arbitration agreement under the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act. All other claims must be arbitrated and are covered by this Agreement. If any claim(s) not covered under this Agreement above are combined with claims that are covered under this Agreement, to the maximum extent permitted under applicable law, the covered claims will be arbitrated and continue to be covered under this Agreement.
Nothing in these Driver Partner Terms prevents you from making a report to or filing a claim or charge with a government agency, including without limitation the Equal Employment Opportunity Commission, U.S. Department of Labor, National Labor Relations Board, Occupational Safety and Health Administration, or law enforcement authorities. Nothing in these Driver Partner Terms prevents the investigation by a government agency of any report, claim or charge otherwise covered by these Driver Partner Terms. This Arbitration Agreement and Class Action Waiver also does not prevent federal administrative agencies from adjudicating claims and awarding remedies based on those claims, even if the claims would otherwise be covered by these Driver Partner Terms. Nothing in these Driver Partner Terms prevents or excuses a party from satisfying any conditions precedent and/or exhausting administrative remedies under applicable law before bringing a claim in arbitration. The Company will not retaliate against you for filing a claim with an administrative agency or for exercising rights (individually or in concert with others) under Section 7 of the National Labor Relations Act.
A party may apply to a court of competent jurisdiction for temporary or preliminary injunctive relief in connection with an arbitrable controversy in accordance with applicable law, and any such application shall not be deemed incompatible with or waiver of this agreement to arbitrate. The court to which the application is made is authorized to consider the merits of the arbitrable controversy to the extent it deems necessary in making its ruling, but only to the extent permitted by applicable law. All determinations of final relief, however, will be decided in arbitration.
16.3 Starting the Arbitration. If either party initiates arbitration, the initiating party must notify the other party in writing via U.S. Mail, or hand delivery within the applicable statute of limitations period. This demand for arbitration must include: (1) the name and address of the party seeking arbitration; (2) a statement of the legal and factual basis of the claim; and (3) a description of the remedy sought. Any demand for arbitration by Driver Partner must be delivered to Spruce at 154 Grand Street, New York, NY 10013. The arbitrator will resolve all disputes regarding the timeliness or propriety of the demand for arbitration.
16.4 CLASS, COLLECTIVE AND JOINT PAGA ACTION WAIVERS. The parties agree to bring any claim on an individual basis and not on a class or collective basis, or in a representative California Private Attorney General action that seeks to join claims premised on legal violations suffered by you with claims premised on legal violations suffered by others. Accordingly:
(1) There will be no right or authority for any dispute covered by this Agreement to be brought, heard, or arbitrated as a class action and the Arbitrator will have no authority to hear or preside over any such class action claim (“Class Action Waiver”). The Class Action Waiver shall be severable from this Agreement if there is a final judicial determination that the Class Action Waiver is invalid, unenforceable, unconscionable, void, or voidable. In such instances, the class action must be litigated in a civil court of competent jurisdiction — not in arbitration.
(2) There will be no right or authority for any dispute covered by this Agreement to be brought, heard, or arbitrated as a collective action and the Arbitrator will have no authority to hear or preside over any such Collective Action claim (“Collective Action Waiver”). The Collective Action Waiver shall be severable from this Agreement if there is a final judicial determination that the Collective Action Waiver is invalid, unenforceable, unconscionable, void, or voidable. In such instances, the collective action must be litigated in a civil court of competent jurisdiction — not in arbitration. The parties further agree that the Driver Partner waives any right to receive notice of any Collective Action that may be filed.
(3) Consistent with the U.S. Supreme Court’s decision in Viking River Cruises, Inc. v. Moriana, No. 20-1572, (2022), a Driver Partner may bring an action in arbitration for individual civil penalties under the California Private Attorneys General Act (“PAGA”), Cal. Lab. Code § 2698, et seq., arising from covered California Labor Code violations personally suffered by such Driver. Any such individual PAGA action premised on California Labor Code violations arising out of or relating to the Driver Partner’s application, selection, engagement as an independent contractor or putative employment, or the termination of Driver Partner’s relationship with Spruce may only be brought in arbitration and may not be brought in a court of law or before a forum other than arbitration. There will be no right or authority for any dispute Covered by this Agreement to be brought, heard, or arbitrated as a JOINT PAGA action that seeks to recover civil penalties premised on California labor code violations arising out of events involving any Driver Partner other than the Driver Partner asserting such individual claim and the Arbitrator will have no authority to hear or preside over any such Joint PAGA ACTION claim (“Joint PAGA Action Waiver”). The Joint PAGA Action Waiver shall be severable from this Agreement if there is a final judicial determination that the Joint PAGA Action Waiver is invalid, unenforceable, unconscionable, void, or voidable. In such instances, the Joint PAGA Action must be litigated in a civil court of competent jurisdiction — not in arbitration.
Regardless of anything else in this Agreement, the AAA Employment Arbitration Rules, any other rules of the AAA or other arbitration agency the parties select, and/or any amendments and/or modifications to any of those rules, any claim that all or part of the Class Action Waiver, Collective Action Waiver, and/or Joint PAGA Action Waiver, is invalid, unenforceable, unconscionable, void, or voidable, in whole or part may be determined only by a court of competent jurisdiction and not by an arbitrator.
Similarly, regardless of anything else in this Agreement, any dispute regarding whether or not an arbitration demand made pursuant to this Agreement violates the Class Action Waiver, Collective Action Waiver, and/or Joint PAGA Action Waiver may be determined only by a court of competent jurisdiction and not by an arbitrator. Such a determination shall be made, whenever it is not impossible, prior to the commencement of arbitral proceedings with AAA (or other agency) pursuant to this Agreement, including the payment of any filing fees to such agency associated with such arbitral proceedings.
Even if all or part of the Class Action Waiver, Collective Action Waiver, and/or Joint PAGA Action Waiver, is found to be invalid, unenforceable, unconscionable, void, or voidable, in whole or part, under no circumstances may an action pursuant to this Agreement be brought in arbitration as a Class Action, Collective Action, and/or Joint PAGA Action.
16.5 Driver Partner agrees and acknowledges that entering into this Arbitration Agreement and Class Action Waiver does not change Driver Partner’s status as an independent contractor in fact and in law, that Driver Partner is not an employee of Spruce and that any disputes in this regard shall be subject to arbitration as provided in this Arbitration Agreement and Class Action Waiver.
16.6 Except as otherwise stated in this Arbitration Agreement and Class Action Waiver, any arbitration shall be governed by the American Arbitration Association Commercial Arbitration Rules (“AAA Rules”), subject to the following:
(a) The arbitration shall be heard by one arbitrator selected in accordance with the AAA Rules. Unless the parties agree otherwise, the arbitrator shall be an attorney experienced in the law in the underlying dispute and licensed to practice law in the state in which the arbitration is convened, or a former judge from any jurisdiction. The arbitrator shall have authority to decide gateway issues, including arbitrability.
(b) The location of the arbitration proceeding will be in the county and state where Driver Partner last performed services for Spruce, unless Driver Partner and Spruce agree in writing otherwise.
(c) Unless applicable law provides otherwise, as determined by the Arbitrator, the parties agree that Company shall pay all of the Arbitrator’s fees and costs.
(d) The Arbitrator may issue orders (including subpoenas to third parties in accordance with any applicable federal or state law) allowing the parties to conduct discovery sufficient to allow each party to prepare that party’s claims and/or defenses, taking into consideration that arbitration is designed to be a speedy and efficient method for resolving disputes.
(e) Except as provided in the Class Action Waiver, the Arbitrator may award all remedies to which a party in his or her individual capacity is entitled under applicable law and which would otherwise be available in a court of law, but shall not be empowered to award any remedies that would not have been available in a court of law for the claims presented in arbitration. The Arbitrator shall apply the state or federal substantive law, or both, as is applicable.
(f) Either party may file motions to dismiss and/or motions for summary judgment and the Arbitrator will apply the standards of the Federal Rules of Civil Procedure governing such motions.
(g) The Arbitrator’s reasoned decision or award shall be in writing with findings of fact and conclusions of law. Judgment may be entered on the arbitrator’s decision or award in any court having jurisdiction.
(h) The AAA Rules may be found at www.adr.org or by searching for “AAA Commercial Arbitration Rules” using a service such as www.Google.com or www.Bing.com.
(i) This Arbitration Agreement and Class Action Waiver is the full and complete agreement relating to the formal resolution of disputes covered by this Arbitration Agreement. In the event any portion of this Arbitration Agreement and Class Action Waiver is deemed unenforceable, the remainder of this Arbitration Agreement and Class Action Waiver will be enforceable. This Arbitration Agreement survives after the termination of the Client Terms, Driver Partner Terms and/or after Driver Partner ceases any assignment and/or relationship with Spruce. This Arbitration Agreement and Class Action Waiver also will continue to apply notwithstanding any change in Driver Partner’s responsibilities, position, or title, or if Driver Partner transfers companies. Notwithstanding any contrary language in the Driver Partner Terms or in any Spruce policy or other agreement, this Arbitration Agreement and Class Action Waiver may not be modified or terminated absent a writing signed (electronically or otherwise) by both Driver Partner and an authorized representative of Spruce.
17. Term and Termination
These Driver Partner Terms will remain in effect until terminated by either party. However, the parties agree that each route shall constitute a separate contractual engagement governed by these Driver Partner Terms and the attached Equipment Lease, the term of which shall be as set forth in the Equipment Lease. Driver Partner may terminate these Driver Partner Terms for any or no reason at any time by providing written notice to the other party, subject only to the obligation to complete any route then in-progress. Spruce may terminate these Driver Partner Terms for material breach of these Driver Partner Terms.
Upon any termination, Driver Partner will not be relieved of the obligation to pay any fees due to Spruce, which accrued before the termination date. Based on the contractual agreement between Veho and Spruce, Veho reserves the right to suspend or terminate Spruce and/or Driver Partner’s access to the Platform in order to protect Veho’s rights and interests. Any outstanding obligations of Spruce to provide the Driver Partner with tax reports or payment information shall survive the termination of these Driver Partner Terms. Notwithstanding this provision or any contrary terms in these Driver Partner Terms, the Arbitration Agreement and Class Action Waiver survives after the termination of these Driver Partner Terms and/or after Driver Partner ceases any assignment and/or relationship with Spruce, or any of the third party beneficiaries described above specifically including Veho.
18. Force Majeure
In no event will Spruce be liable for any failure to comply with these Driver Partner Terms to the extent that such failure arises from factors outside our reasonable control. Without limitation of the foregoing, in the absence of our gross negligence or willful misconduct we will not be liable for any damages arising from the acts of hackers or similar bad actors interfering with the Platform or using or disclosing any of Your content.
Spruce is based in the United States. Access to the Veho Platform is only provided to persons located in the United States. Spruce makes no claims that the Veho Platform or any of its content is accessible or appropriate outside of the United States. Access to the Platform may not be legal by certain persons or in certain countries. If you access the Platform from outside the United States, you do so on your own initiative and are responsible for compliance with local laws.
20. Changes to the Driver Partner Terms
Spruce may revise and update these Driver Partner Terms from time to time in our sole discretion, with the sole exception of the Arbitration Agreement provisions. All changes are effective immediately when we post them, and apply to all access to and use of the Platform thereafter. However, any changes to the Arbitration Agreement and Class Waiver will not apply to any disputes for which the parties have actual notice on or prior to the date the change is posted on the Platform. Your continued provision of services as contractor of Spruce via a proprietary online platform operated by Veho following the posting of revised Driver Partner Terms and after providing you with notice of any changes to the terms means that you accept and agree to the changes. You are expected to check this page frequently so you are aware of any changes, as they are binding on you.
21. Waiver and Severability
No waiver by Spruce of any term or condition set forth in these Driver Partner Terms shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of Spruce to assert a right or provision under these Driver Partner Terms shall not constitute a waiver of such right or provision.
The invalidity of any one or more of the words, phrases, sentences, clauses, or sections contained in these Driver Partner Terms shall not affect the enforceability of the remaining portions of these Driver Partner Terms or any part thereof, all of which are inserted conditionally on their being valid in law, and, in the event that any one or more of the words, phrases, sentences, clauses, or sections contained in these Driver Partner Terms shall be declared invalid or unenforceable by a court of competent jurisdiction, or an arbitrator as applicable, these Driver Partner Terms shall be construed as if such invalid word or words, phrase or phrases, sentence or sentences, clause or clauses, or section or sections had not been inserted. If such invalidity is caused by scope, length of time, or size of area, or any or all of the foregoing, the otherwise invalid or unenforceable provision will be considered to be reduced to such scope, time, or area, which would cure such invalidity and render it valid and enforceable.
22. Entire Agreement
The Driver Partner Terms, including the Equipment Lease, and any supplemental agreements incorporated into the Driver Partner Terms constitute the sole and entire agreement between you and Spruce with respect to providing services as a contractor of Spruce via Spruce’s license to access the proprietary online platform operated by Veho and supersede all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to the Platform.
These Driver Partner Terms and your rights and obligations hereunder are not assignable, or otherwise transferable or delegable, by you to any third party without our prior written consent in our sole discretion. Any purported assignment, transfer or delegation without such consent will be null and void. Spruce may assign or otherwise transfer or delegate these Driver Partner Terms (including any rights or obligations hereunder), including to any purchaser of Spruce’s business, from time-to-time in our sole discretion. This agreement will be binding upon and inure to the benefit of the parties’ successors and permitted assigns.
You agree that email to your email address on record will constitute formal notice under these Driver Partner Terms.
25. Headings. The headings and other captions in these Driver Partner Terms are included solely for convenience of reference and will not control the meaning and interpretation of any provision of these Driver Partner Terms.
26. No Strict Construction. The language used in these Driver Partner Terms will be deemed the language chosen by the parties to express their mutual intent, and no rule of strict construction will be applied against any person.
27. Signature. These Driver Partner Terms and the Equipment Lease may be signed and are enforceable by electronic signature, digital signature, wet signature, and facsimile signature.