17. Dispute Resolution & Arbitration Agreement
17.1. Overview of Dispute Resolution Process: This Section 17 provides for a two-part process for dispute resolution: (1) an informal dispute resolution process directly with Instacart (described in paragraph 17.2, below), and if necessary, (2) a binding arbitration administered by the American Arbitration Association (“AAA”) or ADR Services Inc. (“ADR Services”), depending on where you reside. Notwithstanding these provisions, you and Instacart and/or the Retailer each retain the right to seek resolution of disputes in small claims court as an alternative to arbitration.
17.2. Mandatory Informal Dispute Resolution: If you have a dispute with Instacart, you and Instacart agree that good-faith informal efforts to resolve disputes often can result in a prompt, low-cost and mutually beneficial outcome. Therefore, before initiating formal proceedings, you and Instacart agree to first attempt to work out any such dispute amicably. The initiating party must give notice to the other party in writing of its, his, or her dispute, including a written description of the dispute.
For any dispute you initiate, you agree to provide written notice to:
Instacart
ATTN: Legal Department
50 Beale Street, Suite 600
San Francisco, CA 94105
Your written description must be on an individual basis and personally signed by you and not by an attorney, agent, or representative. The notice must also provide at least the following information: your name; the email address associated with your account; a detailed description of the nature and basis of the dispute, including any transaction details; and the specific relief sought and how it was calculated. For any dispute that Instacart raises, we will send our written description of the dispute (including the information listed above), signed by an authorized Instacart representative, to the most recent delivery address associated with your account. The initiating party must allow the other party 60 days to respond and attempt to resolve the dispute amicably before initiating an arbitration or other proceeding per the terms set forth below.
You and Instacart agree that this informal dispute resolution process is a requirement that must be fulfilled prior to initiating an arbitration or small claims proceeding. The applicable statute of limitations period and any filing fee deadlines shall be tolled from the time the initiating party sends their written notice through the 60 day period set forth above.
17.3. Arbitration Agreement for United States Residents: For residents of the United States, if we’re unable to work out a solution amicably, each of you, Instacart, and Rosauers Supermarkets agree to resolve through binding arbitration, rather than in court, any dispute, controversy, or claim (each, a “Claim”) arising at any time, including but not limited to those arising out of or relating to: (i) these Terms, including the formation, existence, breach, termination, enforcement, interpretation, validity, scope, or enforceability thereof; (ii) access to or use of the Services, including receipt of any advertising or marketing communications and/or any information contained on the Services; (iii) any transactions through, by, or using the Services, including any goods or services purchased or sold through, by, or using the Services and any consumption or use of those goods and services; (iv) any other aspect of your relationship or transactions with Instacart as a consumer; or (v) Third Party Disputes (as defined in Section 17.4 below) (the “Arbitration Agreement”).
This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of these Terms.
17.4. Application to Third Parties: This Arbitration Agreement shall be binding upon, and shall include any dispute, controversy, or claim brought by or against any third parties where the underlying claims arise out of or relate to your use of the Services or any use of your user account applicable to the Services (“Third Party Disputes”). Third Party Disputes shall include any dispute, controversy, or claim by or against any Retailers, Third-Party Providers, Instacart’s vendors and service providers including without limitation: payment processors, partners assisting in fraud prevention, companies advertising through the Services, partners with whom we work for advertising measurement, attribution and/or analytics, and companies that offer co-branded services or products, as well as your spouses, heirs, third-party beneficiaries and assigns. For avoidance of doubt, a Claim under this Arbitration Agreement includes all claims or disputes between you and the Retailer arising out of or related to the Services performed under this Agreement and/or services in connection with the Retailer’s White Label Site.
17.5. Exceptions to Arbitration Agreement: Notwithstanding this mandatory Arbitration Agreement, you, Instacart and the Retailer each retain the right: (a) to assert claims in small claims court, so long as the claims qualify and the matter remains in such court and advances only on an individual (non-class, non-representative) basis; and, (b) to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement of a party’s intellectual property rights. If a Claim qualifies for small claims court but a party commences an arbitration proceeding, you, Instacart, and the Retailer agree that any of you may elect instead to have the Claim resolved in small claims court, and upon written notice of a party's election, the arbitration proceeding will be administratively closed. Any dispute about whether a Claim qualifies for small claims court shall be resolved by that court, not by an arbitrator.
17.6. Jury Trial Waiver: TRIAL BY JURY WAIVER: BY ENTERING INTO THESE TERMS, YOU ACKNOWLEDGE AND AGREE THAT, WITH RESPECT TO ANY CLAIM(S) WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT, YOU, INSTACART, AND Rosauers Supermarkets ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY.
17.7. Class, Collective, and Representative Action Waiver: BY ENTERING INTO THESE TERMS, YOU ACKNOWLEDGE AND AGREE THAT, WITH RESPECT TO ANY CLAIM(S) WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT, YOU, INSTACART, AND Rosauers Supermarkets ARE EACH WAIVING THE RIGHT TO BRING, JOIN, OR PARTICIPATE IN, EITHER AS A PLAINTIFF OR CLASS MEMBER, IN ANY PURPORTED CLASS, COLLECTIVE, OR REPRESENTATIVE ACTION OR PROCEEDING. YOU ALSO ACKNOWLEDGE AND AGREE THAT, UNLESS YOU, INSTACART AND/OR THE RETAILER OTHERWISE AGREE IN WRITING, ANY ARBITRATION OF ANY CLAIM(S) WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, COLLECTIVE, CONSOLIDATED, OR REPRESENTATIVE PROCEEDING. YOU FURTHER ACKNOWLEDGE THAT THE ARBITRATOR MAY AWARD RELIEF ONLY IN YOUR FAVOR AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY YOUR INDIVIDUAL CLAIM(S), AND ANY RELIEF AWARDED CANNOT AFFECT OTHER INSTACART USERS OR CUSTOMERS OF THE RETAILER. THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS OR ENGAGE IN ANY CLASS, COLLECTIVE, OR REPRESENTATIVE ARBITRATION.
17.8. Arbitration Rules and Governing Law:
The Federal Arbitration Act, 9 U.S.C. § 1 et seq. (the “FAA”), governs the interpretation and enforcement of this Arbitration Agreement and preempts all state laws to the fullest extent permitted by law. If the FAA is found to not apply to any issue that arises from or relates to this Arbitration Agreement, then that issue shall be resolved under and governed by the law of your state of residence.
Except as described below for California residents, the arbitration shall be administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (the “Rules”) in effect at the time the arbitration demand is made. The Rules are available at www.adr.org. In the event of any conflict between the Rules and this Arbitration Agreement, this Arbitration Agreement shall apply.
The Parties agree to submit to the jurisdiction of a single neutral arbitrator (the “Arbitrator”) selected in accordance with the Rules. The Arbitrator will decide the rights and liabilities, if any, of you and Instacart. The Arbitrator will have the authority to award the same damages and relief on an individual basis that a judge in a court of law can award to an individual. The Arbitrator shall follow the applicable law. The Arbitrator’s decision is final and binding on you and Instacart.
Except as otherwise expressly provided herein, you, Instacart, and the Retailer agree that the Arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement, including any claim that all or any part of this Arbitration Agreement is void or voidable. The Arbitrator shall also be responsible for determining all threshold arbitrability issues, including issues relating to whether the Terms are unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, unconscionability, or estoppel.
The arbitration will be held in the United States county where you live or use the Services, or a location you and Instacart mutually agree upon in writing. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and Instacart submit to the arbitrator, unless the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the Rules.
The Rules will govern the payment of all filing, administrative or arbitrator fees associated with arbitration (“Arbitration Fees”) and each party will be responsible for their own Arbitration Fees under those Rules or to the maximum extent permitted by law. Notwithstanding the foregoing, either party may make a request for and will be entitled to an award of reasonable attorneys’ fees and costs–including but not limited to any Arbitration Fees–if the Arbitrator finds that the other party has asserted a claim, cross-claim or defense that is groundless in fact or law, brought in bad faith or for the purpose of harassment, or is otherwise frivolous, within the meaning of Federal Rule of Civil Procedure 11 or a state or local equivalent.
For California residents, the arbitration shall be administered by ADR Services, Inc. (“ADR Services”) under its Arbitration Rules (the “ADR Services Rules”) in effect at the time the arbitration demand is made. The ADR Services Rules are available at: https://www.adrservices.com/services/arbitration-rules/. In the event of any conflict between the ADR Services Rules and this Arbitration Agreement, this Arbitration Agreement shall apply.
For California residents, the Parties agree to submit to the jurisdiction of a single neutral arbitrator selected in accordance with the ADR Services Rules (the “ADR Arbitrator”). The ADR Arbitrator will decide the rights and liabilities, if any, of you and Instacart and/or the Retailer. The ADR Arbitrator will have the authority to award the same damages and relief on an individual basis that a judge in a court of law can award to an individual. The ADR Arbitrator shall follow the applicable law. The ADR Arbitrator’s decision is final and binding on you and Instacart.
For California residents, except as otherwise expressly provided herein, you and Instacart and/or the Retailer agree that the ADR Arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement, including any claim that all or any part of this Arbitration Agreement is void or voidable. The ADR Arbitrator shall also be responsible for determining all threshold arbitrability issues, including issues relating to whether the Terms are unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, unconscionability, or estoppel.
For California residents, the arbitration will be held in the California county where you live or use the Services, San Francisco, California, or any other location you and Instacart and/or the Retailer mutually agree upon in writing.
For California residents, the ADR Services Rules will govern the payment of all filing, administrative or arbitrator fees associated with arbitration (“ADR Services Arbitration Fees”), currently summarized on ADR Services website at https://www.adrservices.com/rate-fee-schedule/, except that Instacart and/or the Retailer, as applicable, will reimburse you at the conclusion of the arbitration for any ADR Services Arbitration Fees that you pay in excess of the cost to file the dispute in a court of competent jurisdiction in the location of the arbitration. Any dispute about the amount or payment of this reimbursement shall be resolved by the Arbitrator. If the Arbitrator finds that you cannot afford to pay ADR Services Arbitration Fees and you cannot obtain a fee waiver from ADR Services, Instacart and/or the Retailer, as applicable will pay such fees for you. Notwithstanding the foregoing, either party may make a request for and will be entitled to an award of reasonable attorneys’ fees and costs–including but not limited to any ADR Services Arbitration Fees–if the Arbitrator finds that the other party has asserted a claim, cross-claim or defense that is groundless in fact or law, brought in bad faith or for the purpose of harassment, or is otherwise frivolous, within the meaning of Federal Rule of Civil Procedure 11 or a state or local equivalent.
17.9. Opt-out of Mandatory Arbitration: You can reject and opt-out of this Arbitration Agreement within 30 days of first accepting these Terms by emailing Instacart at arbitration-opt-out@instacart.com with your first and last name and the email address associated with your account and stating your intent to opt-out of the Arbitration Agreement. Note that opting out of this Arbitration Agreement does not affect any other part of these Terms, including the provisions regarding controlling law or in which courts any disputes must be brought.
17.10. Changes to Agreement to Arbitrate: If Instacart changes this Section 17 after the date you last accepted these Terms (or accepted any subsequent changes to these Terms), you may reject that change by sending us written notice via email as set forth above, within 30 days of the date the change is effective. Rejecting a new change, however, does not revoke or alter your prior consent or any earlier agreements to arbitrate any dispute between you and Instacart and/or the Retailer or other Third Parties identified in Section 17.4.
17.11 Severance of Arbitration Agreement: If this Arbitration Agreement is found to be void, unenforceable, or unlawful, in whole or in part, the void, unenforceable, or unlawful provision, in whole or in part, shall be severed. Severance of the void, unenforceable, or unlawful provision, in whole or in part, shall have no impact on the remaining provisions of the Arbitration Agreement, which shall remain in force, or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to the Arbitration Agreement. Notwithstanding the foregoing, if the Class, Collective, Representative Action Waiver above is found to be void, unenforceable, or unlawful, in whole or in part, because it would prevent you from seeking public injunctive relief, then any dispute regarding the entitlement to such relief (and only that relief) must be severed from arbitration and may be litigated in a civil court of competent jurisdiction. All other claims for relief subject to arbitration under this Arbitration Agreement shall be arbitrated under its terms, and the parties agree that litigation of any dispute regarding the entitlement to public injunctive relief shall be stayed pending the outcome of any individual claims in arbitration.
17.12. Survival of Arbitration Agreement: Except as otherwise provided in this Section 17, this Arbitration Agreement will survive any termination of the Terms or of your access to the Services, including under Section 18 or otherwise. This Arbitration Agreement will continue to apply even if you or we close your Instacart account.