Preview
FILED: KINGS COUNTY CLERK 05/09/2024 01:39 PM INDEX NO. 521865/2023
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EXHIBIT B
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
------------------------------------ :
:
ELISHEVA VAN HALEM, :
:
:
Plaintiff, :
:
- against - : Index No.: 521865/2023
:
UBER TECHNOLOGIES, INC., UBER USA, LLC, :
SHANTIPERKASH JOELOMSINGH and :
AVRAHAM GIFTER, :
:
:
Defendants
------------------------------------ :
AFFIDAVIT OF ALEJANDRA O’CONNOR
Personally appeared before the undersigned officer duly authorized to administer oaths in
this state, Alexandra O’Connor, who, after first being duly sworn, deposes as follows:
1. I am over the age of 18 and a resident of Illinois. I submit this affidavit in support
of Motion of Defendants Uber Technologies, Inc and Uber USA, LLC to Compel Arbitration and
to Stay Action. I have personal knowledge of each fact stated in this affidavit and, if called as a
witness, I could and would competently and truthfully testify thereto. That personal knowledge
includes, among other things, my own use and familiarity with the Uber app and my experience
working with the databases which store data from the Uber app as well as the records that are
generated from the databases.
2. I am presently employed with Uber Technologies, Inc. (hereinafter “Uber”) as Lead
Paralegal. I have been employed by Uber since 2016.
3. I make this affidavit based upon my personal knowledge and information available
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to me, including records maintained in the ordinary course of Uber’s business.
4. Uber is a technology company that uses its proprietary technology to develop and
maintain digital multi-sided marketplace platforms. Some specific examples of platforms that Uber
has developed include the Rides platform (connecting riders with independent drivers) and the
Eats platform (connecting merchants, delivery people, and eaters).
5. Uber USA, LLC is a wholly owned subsidiary of Uber.
6. In order to utilize Uber’s platforms, a user must register for an account and agree
to the Terms of Use (also referred to as “Terms of Service” or “Terms & Conditions,” hereafter
the “Terms”).
7. In the ordinary course of its business, Uber maintains records regarding when and
how Users register for an account, when users indicate consent to Terms of Use, and the Terms of
Use in effect and as amended from time to time. As Lead Paralegal, I have access to these records
and am personally familiar with them.
RIDER TERMS
8. On March 24, 2021, Plaintiff Elisheva Van Halem was presented with an in-app
blocking pop-up screen with the header “We’ve updated our terms.” It also stated in large type,
“We encourage you to read our Updated Terms in full” and under that message had the phrases
“Terms of Use” and “Privacy Notice,” which were displayed underlined and in bright blue text,
all of which set the text apart from other text on the screen and indicated a hyperlink. When a user
clicked either hyperlink, the Terms of Use or Privacy Notice, respectively, were displayed.
Attached hereto as Exhibit A is a true and correct copy of a representation of the in-app blocking
pop-up screen.
9. Based upon my personal knowledge, the in-app blocking pop-up screen precluded
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the use of the Uber app unless or until a user clicked the checkbox on the screen and clicked the
large “Confirm” button at the bottom of the screen.
10. The in-app blocking pop-up screen expressly stated that: “By checking the box, I
have reviewed and agreed to the Terms of Use and acknowledge the Privacy Notice.” It also states
that: “I am at least 18 years of age.”
11. Based upon my personal knowledge, when a user clicks the checkbox and clicks
the “Confirm” button a record of this consent is electronically captured, recorded, maintained and
stored in the ordinary course of Uber’s business at the time of the events being recorded. This
record is linked to the user’s email address and/or mobile telephone number associated with the
user’s account. A record of the user’s consent cannot be manually edited.
12. On May 1, 2024, I personally searched Uber’s database for Plaintiff Elisheva Van
Halem’s account by entering their phone number - . Uber’s records indicate that
Plaintiff clicked the checkbox and tapped “Confirm” on March 24, 2021 and July 12, 2023.
Attached hereto as Exhibit B is a true and correct copy of Plaintiff’s user account sign-up date and
consent record.
13. In the ordinary course of business, Uber maintains and stores all prior versions of
Terms of Service agreements that have been published on its website. I accessed Uber’s business
records and reviewed the Terms that went into effect for U.S. users on or about January 18, 2021
and June 14, 2023. Attached hereto as Exhibit C is a true and correct copy of the January 18, 2021
and June 14, 2023 Terms. These Terms contain an Arbitration Agreement.
LETTER DEMAND FOR ARBITRATION
14. On September 6, 2023, counsel for Uber sent Plaintiff a letter demanding
arbitration. Attached hereto as Exhibit D is a true and correct copy of the letter demanding
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arbitration.
PLAINTIFF’S CONTINUED USE OF SERVICES PURSUANT TO TERMS
15. Pursuant to its Terms, Uber has provided Plaintiff with access to its services.
Plaintiff has used the Uber app to complete trips and orders from September 24, 2017 up to April
18, 2024. Attached hereto as Exhibit E is a true and correct copy of Plaintiff’s trip and order
history.
I declare under penalty of perjury and the laws of the State of New York that the foregoing
is true and correct and that this affidavit was executed on May 2nd, 2024 at Goodyear, Arizona.
______________________________
Alexandra O’Connor f/k/a
Alejandra Vasquez
County of Duval
State of Florida
Sworn to and subscribed before
me this 2nd day of May, 2024.
_________________________________
NOTARY PUBLIC
My Commission expires: 04/01/2026
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
------------------------------------ :
:
ELISHEVA VAN HALEM, :
:
Plaintiff, :
:
- against - :
: Index No.: 521865/2023
UBER TECHNOLOGIES, INC., UBER USA, LLC, :
SHANTIPERKASH JOELOMSINGH and :
AVRAHAM GIFTER, :
:
Defendants. :
:
------------------------------------ :
CERTIFICATE OF CONFORMITY
STATE OF FLORIDA )
) ss:
COUNTY OF DUVAL )
I, Tracey Angelopoulos, Esq, an attorney duly licensed to practice law in the State of
Florida, affirm, under the penalties of perjury, and certify that, I am fully acquainted with the
laws of the State of Florida pertaining to the administration and taking of oaths and affirmations.
The affidavit and declaration under penalty of perjury by Alexandra O’Connor f/k/a Alejandra
Vasquez, named in the foregoing instrument, taken before Gabriela Nori Pelkey, a State of
Florida notary public, on May 2, 2024, was taken in the manner prescribed by the laws of the
State of Florida. The Affidavit and declaration under penalty of perjury conforms to the laws of
the State of Florida, and it is in all respects valid and effective in the State of Florida. This
Certificate has been executed in compliance with New York State CPLR § 2309(c) and Real
Property Law § 299-a.
Dated: ____________________ ______________________
Tracey Angelopoulos, Esq
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EXHIBIT A
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EXHIBIT B
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CONFIDENTIAL
Reports
Checkbox Consent History
Account Holder UUID 8d7f58e9-4e36-44bf-a6eb-349a07ff55cc Account Holder Name Elisheva Van Halem
2 rows returned on May 1, 2024, 10:29:07 PM (UTC) by avasquez
Signup Timestamp UTC ▲ Signup Type Consent Timestamp UTC Consent Type
1. Dec 24, 2015, 3:27:17 AM android Jul 12, 2023, 5:30:17 PM post_signup_checkbox
2. Dec 24, 2015, 3:27:17 AM android Mar 24, 2021, 12:30:20 AM post_signup_checkbox
CONFIDENTIAL
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EXHIBIT C
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EFFECTIVE DATE 2021-01-18 UBER TERMS
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Last modified: 1/18/2021
U.S. Terms of Use
1. Contractual Relationship
These Terms of Use ("Terms") govern your access or use, from within the United States and its
territories and possessions, of the multi-sided digital marketplace platform (“Uber Marketplace
Platform”) and any related content or services (collectively, the “Services,” as more fully defined
below in Section 3) made available in the United States and its territories and possessions by Uber
Technologies, Inc. and its subsidiaries, representatives, affiliates, officers and directors (collectively,
"Uber"). PLEASE READ THESE TERMS CAREFULLY, AS THEY CONSTITUTE A LEGAL AGREEMENT
BETWEEN YOU AND UBER. In these Terms, the words "including" and "include" mean "including,
but not limited to."
By accessing or using the Services, you confirm your agreement to be bound by these Terms. If you
do not agree to these Terms, you may not access or use the Services. These Terms expressly
supersede prior agreements or arrangements with you regarding the use of the Services.
Notwithstanding the foregoing, these Terms do not supersede or otherwise impact the
enforceability of any agreements you may have with Uber or its subsidiaries regarding driving,
delivering and/or providing transportation and/or delivery services (e.g., the Platform Access
Agreement, the Technology Services Agreement and/or any similar agreements). To the extent (but
only to the extent) any agreement you may have with Uber regarding driving, delivering and/or
providing transportation and/or delivery services conflicts with these Terms, those agreements (and
not these Terms) will prevail.
Uber may immediately terminate these Terms or any Services with respect to you, or generally
cease offering or deny access to the Services or any portion thereof, at any time for any reason.
IMPORTANT: PLEASE BE ADVISED THAT THIS AGREEMENT CONTAINS PROVISIONS THAT
GOVERN HOW CLAIMS BETWEEN YOU AND UBER CAN BE BROUGHT, INCLUDING THE
ARBITRATION AGREEMENT (SEE SECTION 2 BELOW). PLEASE REVIEW THE ARBITRATION
AGREEMENT BELOW CAREFULLY, AS IT REQUIRES YOU TO RESOLVE ALL DISPUTES WITH UBER
ON AN INDIVIDUAL BASIS AND, WITH LIMITED EXCEPTIONS, THROUGH FINAL AND BINDING
ARBITRATION (AS DESCRIBED IN SECTION 2 BELOW). BY ENTERING INTO THIS AGREEMENT,
YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND ALL OF THE
TERMS OF THIS AGREEMENT AND HAVE TAKEN TIME TO CONSIDER THE CONSEQUENCES OF
THIS IMPORTANT DECISION.
Supplemental terms may apply to certain options or offers available through the Services, such as
policies for a particular ride or logistics option (e.g., Uber Connect), event, program, activity, or
promotion. Such supplemental terms will be disclosed to you in connection with the applicable
option or offer. Supplemental terms are in addition to, and shall be deemed a part of, the Terms for
the purposes of the applicable option or offer. Supplemental terms shall prevail over these Terms in
the event of a conflict with respect to the applicable option or offer.
Uber may make changes to these Terms from time to time. If Uber makes changes, it will provide
you with notice of such changes, such as by sending an email, providing a notice through the
Services, or updating the date at the top of these Terms. Unless Uber says otherwise in its notice,
the amended Terms will be effective immediately and your continued access to and use of the
Services after Uber provides such notice will confirm your acceptance of the changes. If you do not
agree to the amended Terms, you must stop accessing and using the Services.
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Uberʼs collection and use of personal information in connection with the Services is described in
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Uber's Privacy Notice located at https://www.uber.com/privacy/notice.
2. Arbitration Agreement
By agreeing to the Terms, you agree that you are required to resolve any claim that you may have
against Uber on an individual basis in arbitration as set forth in this Arbitration Agreement. This will
preclude you from bringing any class, collective, or representative action against Uber, and also
preclude you from participating in or recovering relief under any current or future class, collective,
consolidated, or representative action brought against Uber by someone else. For the avoidance of
doubt, this precludes you from bringing or participating in any kind of any class, collective,
coordinated, consolidated, representative or other kind of group, multi-plaintiff or joint action
against Uber.
(a) Agreement to Binding Arbitration Between You and Uber.
Except as expressly provided below in Section 2(b), you and Uber agree that any dispute, claim or
controversy in any way arising out of or relating to (i) these Terms and prior versions of these Terms,
or the existence, breach, termination, enforcement, interpretation, scope, waiver, or validity thereof,
(ii) your access to or use of the Services at any time, (iii) incidents or accidents resulting in personal
injury that you allege occurred in connection with your use of the Services, whether the dispute,
claim or controversy occurred or accrued before or after the date you agreed to the Terms, or (iv)
your relationship with Uber, will be settled by binding arbitration between you and Uber, and not in a
court of law. This Agreement survives after your relationship with Uber ends.
You acknowledge and agree that you and Uber are each waiving the right to a trial by jury or to bring
or to participate as a plaintiff or class member in any class, purported class, collective, coordinated,
consolidated, or representative proceeding.
This Arbitration Agreement shall be binding upon, and shall include any claims brought by or against
any third-parties, including but not limited to your spouses, heirs, third-party beneficiaries and
assigns, where their underlying claims are in relation to your use of the Services. To the extent that
any third-party beneficiary to this agreement brings claims against the Parties; those claims shall
also be subject to this Arbitration Agreement.
(b) Exceptions to Arbitration
Notwithstanding the foregoing, this Arbitration Agreement shall not require arbitration of the
following claims: (i) individual claims brought in small claims court so long as the matter remains in
such court and advances only on an individual (non-class, non-representative) basis; (ii) individual
claims of sexual assault or sexual harassment occurring in connection with your use of the Services;
and/or (iii) injunctive or other equitable relief in a court of competent jurisdiction to prevent the
actual or threatened infringement, misappropriation or violation of a party's copyrights, trademarks,
trade secrets, patents or other intellectual property rights.
Such claims may be brought and litigated in a court of competent jurisdiction by you on an
individual basis only. On an individual basis means that you cannot bring such claims as a class,
coordinated, consolidated, collective, or representative action against Uber. For the avoidance of
doubt, this precludes you from bringing claims as or participating in any kind of any class, collective,
coordinated, consolidated, representative or other kind of group, multi-plaintiff or joint action
against Uber and no action brought by you may be consolidated or joined in any fashion with any
other proceeding. Where your claims are brought and litigated to completion on such an individual
basis in a court of competent jurisdiction, Uber agrees to honor your election.
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The partiesʼ agreement not to require arbitration in these limited instances does not waive the
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enforceability of this Arbitration Agreement as to any other provision (including, but not limited to,
the waivers provided for in Section 2(a), which will continue to apply in court as well as in
arbitration), or the enforceability of this Agreement as to any other controversy, claim or dispute.
(c) Rules and Governing Law.
The arbitration will be administered by the American Arbitration Association ("AAA") in accordance
with the AAAʼs Consumer Arbitration Rules (the "AAA Rules") then in effect, except as modified by
this Arbitration Agreement. The AAA Rules are available at www.adr.org or by calling the AAA at 1-
800-778-7879.
The parties agree that the arbitrator ("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
applicable, unconscionable or illusory and any defense to arbitration, including waiver, delay, laches,
or estoppel. If there is a dispute about whether this Arbitration Agreement can be enforced or
applies to a dispute, you and Uber agree that the arbitrator will decide that issue.
Notwithstanding any choice of law or other provision in the Terms, the parties agree and
acknowledge that this Arbitration Agreement evidences a transaction involving interstate commerce
and that the Federal Arbitration Act, 9 U.S.C. § 1 et seq. ("FAA"), will govern its interpretation and
enforcement and proceedings pursuant thereto. It is the intent of the parties to be bound by the
provisions of the FAA for all purposes, including, but not limited to, interpretation, implementation,
enforcement, and administration of this Arbitration Agreement, and that the FAA and AAA Rules
shall preempt all state laws to the fullest extent permitted by law. If the FAA and AAA Rules are
found to not apply to any issue regarding the interpretation or enforcement of this Arbitration
Agreement, then that issue shall be resolved under the laws of the state where you reside when you
accept these Terms.
Any dispute, claim, or controversy arising out of or relating to incidents or accidents resulting in
personal injury (including but not limited to sexual assault or harassment claims) that you allege
occurred in connection with your use of the Services, whether before or after the date you agreed
to the Terms, shall be governed by and construed in accordance with the laws of the state in which
the incident or accident occurred.
(d) Process.
Pre-Arbitration Dispute Resolution and Notification. Prior to initiating an arbitration, you and Uber
each agree to notify the other party in writing of any dispute and to attempt to negotiate an informal
resolution. Notice of the dispute must include the partyʼs name, preferred contact information, a
brief description of the dispute, and the relief sought. Notice to Uber must be sent to Uber
Technologies, Inc., Attn: Legal Department, 1515 3rd Street, San Francisco, CA 94158. Neither party
shall initiate arbitration until 30 days after the notice is sent. Engaging in this pre-arbitration dispute
resolution and notification process is a requirement that must be fulfilled before commencing
arbitration. The statute of limitations and any filing fee deadlines shall be tolled while the parties
engage in the informal resolution process required by this paragraph.
Initiating Arbitration. In order to initiate arbitration, a party must provide the other party with a
written Demand for Arbitration and file the Demand with AAA as specified in the AAA Rules. (The
AAA provides a form Demand for Arbitration - Consumer Arbitration Rules at www.adr.orgor by
calling the AAA at 1-800-778-7879). A party initiating an arbitration against Uber must send the
written Demand for Arbitration to Uber Technologies, Inc., LLC, Attn: Legal Department, 1515 3rd
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Street, San Francisco, CA 94158, or serve the Demand on Uberʼs registered agent for service of
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process, c/o Uber Technologies, Inc. (the name and current contact information for the registered
agent in each state are available online here). The Arbitrator will be either (1) a retired judge or (2)
an attorney licensed to practice law in the state where the arbitration is conducted. The Arbitrator
will be selected by the parties from the AAA's National Roster of Arbitrators. If the parties are unable
to agree upon an Arbitrator after a good faith meet and confer effort, then the AAA will appoint the
Arbitrator in accordance with the AAA Rules.
(e) Location and Procedure.
Unless you and Uber otherwise agree, the arbitration will be conducted in the county where you
reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the
basis of documents you and Uber submit to the Arbitrator, unless you request a hearing or the
Arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a
hearing will be determined by the AAA Rules. Subject to the AAA Rules, the Arbitrator will have the
discretion to direct a reasonable exchange of information by the parties, consistent with the
expedited nature of the arbitration.
(f) Arbitrator's Decision.
The Arbitrator will render an award within the time frame specified in the AAA Rules. Judgment on
the arbitration award may be entered in any court having competent jurisdiction to do so. The
Arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the
extent necessary to provide relief warranted by the claimant's individual claim. An Arbitratorʼs
decision shall be final and binding on all parties. An Arbitratorʼs decision and judgment thereon shall
have no precedential or collateral estoppel effect. If you prevail in arbitration you may seek an award
of attorneys' fees and expenses to the extent permitted under applicable law. Uber will not seek,
and hereby waives all rights Uber may have under applicable law to recover attorneys' fees and
expenses if Uber prevails in arbitration.
(g) Fees.
Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth
in the AAA Rules.
(h) Severability and Survival.
If any portion of this Arbitration Agreement is found to be unenforceable or unlawful for any reason,
(1) the unenforceable or unlawful provision shall be severed from these Terms; (2) severance of the
unenforceable or unlawful provision shall have no impact whatsoever on the remainder of the
Arbitration Agreement or the partiesʼ ability to compel arbitration of any remaining claims on an
individual basis pursuant to the Arbitration Agreement; and (3) to the extent that any claims must
therefore proceed on a class, collective, consolidated, or representative basis, such claims must be
litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that
litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration.
3. The Marketplace Platform & Services
Uber operates a multi-sided digital marketplace platform that is offered in a number of forms,
including mobile and/or web based applications (“Applications”). Among other things, the Uber
Marketplace Platform enables you to receive: (i) services rendered by Uber that facilitate your
connection to independent third party providers, including drivers and restaurants (“Third Party
Providers”), for the purchase of services or goods, such as transportation, logistics and/or delivery
services from those Third Party Providers; and (ii) any related content or services, including
y y g 05/09/2024
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payment processing and customer support. The Uber Marketplace Platform and the Uber content or
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services described in this Section are collectively referred to as “the Services”. Unless otherwise
agreed by Uber in a separate written agreement with you, the Services are made available solely for
your personal, noncommercial use.
YOU ACKNOWLEDGE THAT YOUR ABILITY TO OBTAIN TRANSPORTATION, LOGISTICS AND/OR
DELIVERY SERVICES FROM THIRD PARTY PROVIDERS THROUGH THE USE OF THE UBER
MARKETPLACE PLATFORM AND SERVICES DOES NOT ESTABLISH UBER AS A PROVIDER OF
TRANSPORTATION, LOGISTICS OR DELIVERY SERVICES OR AS A TRANSPORTATION OR
PROPERTY CARRIER. UBER IS NOT A COMMON OR MOTOR CARRIER, DOES NOT TRANSPORT
YOU, AND USE OF THE UBER MARKETPLACE PLATFORM IS ONLY OPEN TO REGISTERED USERS
OF THE UBER MARKETPLACE PLATFORM AND NOT TO THE GENERAL PUBLIC.
YOU ACKNOWLEDGE THAT INDEPENDENT THIRD PARTY PROVIDERS, INCLUDING DRIVERS ARE
NOT ACTUAL AGENTS, APPARENT AGENTS, OSTENSIBLE AGENTS, OR EMPLOYEES OF UBER IN
ANY WAY.
YOU ALSO ACKNOWLEDGE THAT ANY SAFETY RELATED EFFORT, FEATURE, PROCESS, POLICY,
STANDARD OR OTHER EFFORT UNDERTAKEN BY UBER, IN THE INTEREST OF PUBLIC SAFETY
(WHETHER REQUIRED BY APPLICABLE REGULATIONS OR NOT), IS NOT AN INDICIA OF AN
EMPLOYMENT, ACTUAL AGENCY, APPARENT AGENCY, OR OSTENSIBLE AGENCY RELATIONSHIP
WITH AN INDEPENDENT THIRD PARTY DRIVER.
License.
Subject to your compliance with these Terms, Uber grants you a limited, non-exclusive, non-
sublicensable, revocable, non-transferable license to: (i) access and use the Applications on your
personal device solely in connection with your use of the Services; and (ii) access and use any
content, information and related materials that may be made available through the Services, in each
case solely for your personal, noncommercial use. Any rights not expressly granted herein are
reserved by Uber and Uber's licensors.
Restrictions.
You may not: (i) remove any copyright, trademark or other proprietary notices from any portion of
the Services; (ii) reproduce, modify, prepare derivative works based upon, distribute, license, lease,
sell, resell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise
exploit the Services except as expressly permitted by Uber; (iii) decompile, reverse engineer or
disassemble the Services except as may be permitted by applicable law; (iv) link to, mirror or frame
any portion of the Services; (v) cause or launch any programs or scripts for the purpose of unduly
burdening or hindering the operation and/or functionality of any aspect of the Services; or (vi)
attempt to gain unauthorized access to or impair any aspect of the Services or its related systems
or networks.
Third Party Services and Content.
The Services may be made available or accessed in connection with third party services and
content (including advertising) that Uber does not control. Once you click on a link to third party
services or content, you will be subject to the terms and conditions and privacy policy of that
website, destination, or third party service provider. Uber will not warn you that you have left the
Services or that you are subject to the terms and conditions (including privacy policies) of another
website, destination, or third party service provider. You use all links in third party websites and
advertisements at your own risk as these are not part of the Services and are not controlled by
Uber. You acknowledge that different terms of use and privacy policies may apply to your use of
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such third party services and content. Uber does not endorse such third party services and content
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and in no event shall Uber be responsible or liable for any products or services of such third party
providers.
App Stores.
You acknowledge and agree that the availability of the Applications may be dependent on the third
party from which you received the Applicationʼs license, e.g., the Apple iPhone or Android app
stores (“App Store”). You acknowledge and agree that this Agreement is between you and Uber and
not with the App Store and that Uber is responsible for the provision of Services as described in this
Agreement. However, if you downloaded the Application from the Apple App Store, Apple and its
subsidiaries are third-party beneficiaries of this Agreement. Upon your acceptance of this
Agreement, Apple shall have the right (and will be deemed to have accepted the right) to enforce
this Agreement against you as a third-party beneficiary thereof. This Agreement incorporates by
reference Appleʼs Licensed Application End User License Agreement, for purposes of which, you are
“the end-user.” In the event of a conflict in the terms of the Licensed Application End User License
Agreement and this Agreement, the terms of this Agreement will control.
Ownership.
The Services and all rights therein are and shall remain Uber's property or the property of Uber's
licensors. Neither these Terms nor your use of the Services convey or grant to you any rights in or
related to the Services except for the limited license granted above.
You agree that you will not use Uberʼs trademarks, service marks, or trade dress or any similar
names, marks, or trade dress (“Uberʼs Marks”), aside from use incidental to your use of the
Services, without express, written permission from Uber. This prohibition on using Uberʼs Marks
includes, but is not limited to, use in domain names, websites, and social media accounts.
4. Access and Use of the Services
User Accounts.
In order to use most aspects of the Services, you must register for and maintain an active personal
user Services account ("Account"). You must be at least 18 years of age, or the age of legal majority
in your jurisdiction (if different than 18), to obtain an Account, unless a specific Service permits
otherwise. You cannot register for or maintain an Account if you have previously been banned from
accessing or using the Services. Account registration requires you to submit to Uber certain
personal information, such as your name, address, mobile phone number and age, as well as at least
one valid payment method supported by Uber. For more information regarding Uberʼs use of your
personal information, please see our Privacy Notice currently available
at https://privacy.uber.com/policy/. You agree to maintain accurate, complete, and up-to-date
information in your Account, including a valid phone number, address and payment method. Your
failure to comply with these Terms (including policies and supplemental terms) including, without
limitation, your failure to maintain accurate, complete, and up-to-date Account information,
including having an invalid or expired payment method on file, may result in your inability to access
or use the Services. You are responsible for all activity that occurs under your Account, and you
agree to maintain the security and secrecy of your Account username and password at all times.
Unless otherwise permitted by Uber in writing, you may only possess one Account.
User Requirements and Conduct.
You agree to abide by the Uber Community Guidelines, available here. Failure to comply with the
Community Guidelines or any violation of these terms may result in the permanent loss of access to
FILED: KINGS COUNTY CLERK 05/09/2024 01:39 PM INDEX NO. 521865/2023
the Services.
NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 05/09/2024
The Services are not available for use by persons under the age of 18. You may not authorize third
parties to use your Account, and you may not allow persons under the age of 18 to receive
transportation, delivery or logistics services from Third Party Providers unless they are
accompanied by you. You may not assign or otherwise transfer your Account to any other person or
entity. You agree to comply with all applicable laws when accessing or using the Services, and you
may only access or use the Services for lawful purposes (e.g., no transport of unlawful or hazardous
materials). You may not in your access or use of the Services cause nuisance, annoyance,
inconvenience, or property damage, whether to the Third Party Provider or any other party. If you
request a ride option with a car seat, you acknowledge and agree that neither Uber nor the Third
Party Provider is responsible for the safety of a child restraint/car seat that may be available in the
Third Party Providersʼ Vehicle. You acknowledge and agree that it is your obligation to ensure that
the car seat is installed correctly and that the child is properly secured in the seat. If you request a
ride option where a driver agrees to provide you with assistance outside of the vehicle (e.g., Uber
Assist), you acknowledge and agree that neither Uber nor the Third Party Provider is responsible for
any injury or incident that may arise out of the assistance provided by the Third Party Provider. In
certain instances you may be asked to provide proof of age, identity or other method of identity
verification to access or use the Services, and you agree that you may be denied access to or use of
the Services if you refuse to provide proof of age, identity or other method of identity verification.
Subject to the discretion of a Third Party Provider, you may be allowed to bring a small animal, such
as a dog or cat, on a ride requested through the Uber Marketplace Platform. For such trips, you are
responsible for properly securing the animal with a leash, harness, crate / carrier, or through other
means. You are also responsible for ensuring that the animal does not cause damage or a mess in
the Third Party Providerʼs vehicle. You may be subject to a Charge for Repair or Cleaning under
Section 5 for any damage or mess caused by an animal that is transported during a ride requested
under your Account. Please note, in accordance with Uber's policies on service animals and
assistive devices, service animals are generally permitted to accompany riders without extra charge,
regardless of whether it is a Pet Friendly Trip.
Text Messaging and Telephone Calls.
You agree that Uber Technologies, Inc., and its subsidiaries, representatives, affiliates, officers and
directors, may contact you by telephone or text messages (including by an automatic telephone
dialing system and/or with an artificial or pre-recorded voice) at any of the phone numbers provided
by you or on your behalf in connection with an Uber account, including for marketing purposes. You
understand that you are not required to provide this consent as a condition of purchasing any
property, goods or services. You also understand that you may opt out of receiving text messages
from Uber at any time, either by replying “STOP”, texting the word "STOP" to 89203 using the
mobile device that is receiving the messages, or by contacting help.uber.com. If you do not choose
to opt out, Uber may contact you as outlined in its User Privacy Notice, located
at https://www.uber.com/privacy/notice.
You agree that Uber may contact you using any of the phone numbers you provided in connection
with an Uber account (including via text or voice-recorded message) or your email address in the
case of suspected fraud or unlawful activity.
User Provided Content.
Uber may, in Uber's sole discretion, permit you from time to time to submit, upload, publish or
otherwise make available to Uber through the Services textual, audio, and/or visual content and
information, and submission of entries for competitions and promotions ("User Content"). Any User
Content provided by you remains your property. However, by providing User Content to Uber, you
FILED: KINGS COUNTY CLERK 05/09/2024 01:39 PM INDEX NO. 521865/2023
grant Uber a worldwide, perpetual, irrevocable, transferable, royalty-free license, with the right to
NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 05/09/2024
sublicense, to use, copy, modify, create derivative works of, distribute, publicly display, publicly
perform, and otherwise exploit in any manner such User Content in all formats and distribution
channels now known or hereafter devised (including in connection with the Services and Uber's
business and on third party sites and services), without further notice to or consent from you, and
without the requirement of payment to you or any other person or entity.
You represent and warrant that: (i) you either are the sole and exclusive owner of all User Content or
you have all rights, licenses, consents and releases necessary to grant Uber the license to the User
Content as set forth above; and (ii) neither the User Content, nor your submission, uploading,
publishing or otherwise making available of such User Content, nor Uber's use of the User Content
as permitted herein will infringe, misappropriate or violate a third party's intellectual property or
proprietary rights, or rights of publicity or privacy, or result in the violation of any applicable law or
regulation.
You agree to not provide User Content that is defamatory, libelous, hateful, violent, obscene,
pornographic, unlawful, or otherwise offensive, as determined by Uber in its sole discretion,
whether or not such material may be protected by law. Uber may, but shall not be obligated to,
review, monitor, and remove User Content, at Uber's sole discretion and at any time and for any
reason, without notice to you.
User Feedback.
As Uber respects your rights to your ideas, please do not submit any confidential ideas, information,
or suggestions in any form to Uber or any of its affiliates. For any ideas, information, or suggestions
you do submit, regardless of what your communication regarding your submissions says, you
understand that your submissions are voluntary and the following terms shall apply to your
submissions: (i) your submissions and their contents will automatically become the property of
Uber, without any compensation to you; (ii) Uber has no obligation to review your submissions; (iii)
Uber may implement and distribute any portion of your submissions and their contents for any
purpose in any way, without any compensation to you; and (iv) Uber has no obligation to keep your
submissions confidential.
Network Access and Devices.
You are responsible for obtaining the data network access necessary to use the Services. Your
mobile network's data and messaging rates and fees may apply if you access or use the Services
from your device. You are responsible for acquiring and updating compatible hardware or devices
necessary to access and use the Services and Applications and any updates thereto. Uber does not
guarantee that the Services, or any portion thereof, will function on any particular hardware or
devices. In addition, the Services may be subject to malfunctions and delays inherent in the use of
the Internet and electronic communications.
5. Payment
You understand that use of the Services may result in charges to you for the services or goods you
receive ("Charges"). Uber will enable your payment of the applicable Charges for services or goods
obtained through your use of the Services. Charges will include applicable taxes where required by
law. Charges may include other applicable fees, product return fees, cancellation fees, estimated or
actual tolls, and/or surcharges. Further, you acknowledge and agree that Charges applicable in
certain geographical areas may increase substantially during times of high demand or due to other
marketplace factors.
FILED: KINGS COUNTY CLERK 05/09/2024 01:39 PM INDEX NO. 521865/2023
All Charges and payments will be enabled by Uber using the preferred payment method designated
NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 05/09/2024
in your Account, after which you will receive a receipt. If your primary Account payment method is
determined to be expired, invalid or otherwise not able to be charged, you agree that Uber may use
a secondary payment method in your Account, if available. Charges paid by you are final and non-
refundable, unless otherwise determined by Uber.
As between you and Uber, Uber reserves the right to establish or adjust Charges for any or all
services or goods obtained through the use of the Services at any time. Uber will use reasonable
efforts to inform you of Charges that may apply, provided that you will be responsible for Charges
incurred under your Account regardless of your awareness of such Charges or the amounts thereof.
Certain users may from time to time receive promotional offers and discounts that may result in
different amounts charged for the same or similar services or goods obtained through the use of the
Services, and you agree that such promotional offers and discounts, unless also made available to
you, shall have no bearing on your use of the Services or the Charges applied to you. Promotional
offers and discounts are subject to change or withdrawal at any time and without notice. You may
elect to cancel your request for Services at any time prior to the commencement of such Services,
in which case you may be charged a cancellation fee on a Third Party Providerʼs behalf.
With respect to Third Party Providers, Charges you incur will be owed directly to Third Party
Providers, and Uber will collect payment of those charges from you, on the Third Party Providerʼs
behalf as their limited payment collection agent, and payment of the Charges shall be considered
the same as payment made directly by you to the Third Party Provider. In such cases, you retain the
right to request lower Charges from a Third Party Provider for services or goods received by you
from such Third Party Provider at the time you receive such services or goods, and Charges you
incur will be owed to the Third Party Provider. Uber will consider in good faith any request from a
Third Party Provider to modify the Charges for a particular service or good. This payment structure
is intended to fully compensate a Third Party Provid
Preview
FILED: KINGS COUNTY CLERK 05/09/2024 01:39 PM INDEX NO. 521865/2023 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 05/09/2024 EXHIBIT B FILED: KINGS COUNTY CLERK 05/09/2024 01:39 PM INDEX NO. 521865/2023 DocuSign Envelope ID: E0D43FD9-6ED9-4910-91C5-85E5EBF24512 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 05/09/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ------------------------------------ : : ELISHEVA VAN HALEM, : : : Plaintiff, : : - against - : Index No.: 521865/2023 : UBER TECHNOLOGIES, INC., UBER USA, LLC, : SHANTIPERKASH JOELOMSINGH and : AVRAHAM GIFTER, : : : Defendants ------------------------------------ : AFFIDAVIT OF ALEJANDRA O’CONNOR Personally appeared before the undersigned officer duly authorized to administer oaths in this state, Alexandra O’Connor, who, after first being duly sworn, deposes as follows: 1. I am over the age of 18 and a resident of Illinois. I submit this affidavit in support of Motion of Defendants Uber Technologies, Inc and Uber USA, LLC to Compel Arbitration and to Stay Action. I have personal knowledge of each fact stated in this affidavit and, if called as a witness, I could and would competently and truthfully testify thereto. That personal knowledge includes, among other things, my own use and familiarity with the Uber app and my experience working with the databases which store data from the Uber app as well as the records that are generated from the databases. 2. I am presently employed with Uber Technologies, Inc. (hereinafter “Uber”) as Lead Paralegal. I have been employed by Uber since 2016. 3. I make this affidavit based upon my personal knowledge and information available FILED: KINGS COUNTY CLERK 05/09/2024 01:39 PM INDEX NO. 521865/2023 DocuSign Envelope ID: E0D43FD9-6ED9-4910-91C5-85E5EBF24512 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 05/09/2024 to me, including records maintained in the ordinary course of Uber’s business. 4. Uber is a technology company that uses its proprietary technology to develop and maintain digital multi-sided marketplace platforms. Some specific examples of platforms that Uber has developed include the Rides platform (connecting riders with independent drivers) and the Eats platform (connecting merchants, delivery people, and eaters). 5. Uber USA, LLC is a wholly owned subsidiary of Uber. 6. In order to utilize Uber’s platforms, a user must register for an account and agree to the Terms of Use (also referred to as “Terms of Service” or “Terms & Conditions,” hereafter the “Terms”). 7. In the ordinary course of its business, Uber maintains records regarding when and how Users register for an account, when users indicate consent to Terms of Use, and the Terms of Use in effect and as amended from time to time. As Lead Paralegal, I have access to these records and am personally familiar with them. RIDER TERMS 8. On March 24, 2021, Plaintiff Elisheva Van Halem was presented with an in-app blocking pop-up screen with the header “We’ve updated our terms.” It also stated in large type, “We encourage you to read our Updated Terms in full” and under that message had the phrases “Terms of Use” and “Privacy Notice,” which were displayed underlined and in bright blue text, all of which set the text apart from other text on the screen and indicated a hyperlink. When a user clicked either hyperlink, the Terms of Use or Privacy Notice, respectively, were displayed. Attached hereto as Exhibit A is a true and correct copy of a representation of the in-app blocking pop-up screen. 9. Based upon my personal knowledge, the in-app blocking pop-up screen precluded FILED: KINGS COUNTY CLERK 05/09/2024 01:39 PM INDEX NO. 521865/2023 DocuSign Envelope ID: E0D43FD9-6ED9-4910-91C5-85E5EBF24512 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 05/09/2024 the use of the Uber app unless or until a user clicked the checkbox on the screen and clicked the large “Confirm” button at the bottom of the screen. 10. The in-app blocking pop-up screen expressly stated that: “By checking the box, I have reviewed and agreed to the Terms of Use and acknowledge the Privacy Notice.” It also states that: “I am at least 18 years of age.” 11. Based upon my personal knowledge, when a user clicks the checkbox and clicks the “Confirm” button a record of this consent is electronically captured, recorded, maintained and stored in the ordinary course of Uber’s business at the time of the events being recorded. This record is linked to the user’s email address and/or mobile telephone number associated with the user’s account. A record of the user’s consent cannot be manually edited. 12. On May 1, 2024, I personally searched Uber’s database for Plaintiff Elisheva Van Halem’s account by entering their phone number - . Uber’s records indicate that Plaintiff clicked the checkbox and tapped “Confirm” on March 24, 2021 and July 12, 2023. Attached hereto as Exhibit B is a true and correct copy of Plaintiff’s user account sign-up date and consent record. 13. In the ordinary course of business, Uber maintains and stores all prior versions of Terms of Service agreements that have been published on its website. I accessed Uber’s business records and reviewed the Terms that went into effect for U.S. users on or about January 18, 2021 and June 14, 2023. Attached hereto as Exhibit C is a true and correct copy of the January 18, 2021 and June 14, 2023 Terms. These Terms contain an Arbitration Agreement. LETTER DEMAND FOR ARBITRATION 14. On September 6, 2023, counsel for Uber sent Plaintiff a letter demanding arbitration. Attached hereto as Exhibit D is a true and correct copy of the letter demanding FILED: KINGS COUNTY CLERK 05/09/2024 01:39 PM INDEX NO. 521865/2023 DocuSign Envelope ID: E0D43FD9-6ED9-4910-91C5-85E5EBF24512 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 05/09/2024 arbitration. PLAINTIFF’S CONTINUED USE OF SERVICES PURSUANT TO TERMS 15. Pursuant to its Terms, Uber has provided Plaintiff with access to its services. Plaintiff has used the Uber app to complete trips and orders from September 24, 2017 up to April 18, 2024. Attached hereto as Exhibit E is a true and correct copy of Plaintiff’s trip and order history. I declare under penalty of perjury and the laws of the State of New York that the foregoing is true and correct and that this affidavit was executed on May 2nd, 2024 at Goodyear, Arizona. ______________________________ Alexandra O’Connor f/k/a Alejandra Vasquez County of Duval State of Florida Sworn to and subscribed before me this 2nd day of May, 2024. _________________________________ NOTARY PUBLIC My Commission expires: 04/01/2026 FILED: KINGS COUNTY CLERK 05/09/2024 01:39 PM INDEX NO. 521865/2023 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 05/09/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ------------------------------------ : : ELISHEVA VAN HALEM, : : Plaintiff, : : - against - : : Index No.: 521865/2023 UBER TECHNOLOGIES, INC., UBER USA, LLC, : SHANTIPERKASH JOELOMSINGH and : AVRAHAM GIFTER, : : Defendants. : : ------------------------------------ : CERTIFICATE OF CONFORMITY STATE OF FLORIDA ) ) ss: COUNTY OF DUVAL ) I, Tracey Angelopoulos, Esq, an attorney duly licensed to practice law in the State of Florida, affirm, under the penalties of perjury, and certify that, I am fully acquainted with the laws of the State of Florida pertaining to the administration and taking of oaths and affirmations. The affidavit and declaration under penalty of perjury by Alexandra O’Connor f/k/a Alejandra Vasquez, named in the foregoing instrument, taken before Gabriela Nori Pelkey, a State of Florida notary public, on May 2, 2024, was taken in the manner prescribed by the laws of the State of Florida. The Affidavit and declaration under penalty of perjury conforms to the laws of the State of Florida, and it is in all respects valid and effective in the State of Florida. This Certificate has been executed in compliance with New York State CPLR § 2309(c) and Real Property Law § 299-a. Dated: ____________________ ______________________ Tracey Angelopoulos, Esq FILED: KINGS COUNTY CLERK 05/09/2024 01:39 PM INDEX NO. 521865/2023 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 05/09/2024 EXHIBIT A FILED: KINGS COUNTY CLERK 05/09/2024 01:39 PM INDEX NO. 521865/2023 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 05/09/2024 FILED: KINGS COUNTY CLERK 05/09/2024 01:39 PM INDEX NO. 521865/2023 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 05/09/2024 EXHIBIT B FILED: KINGS COUNTY CLERK 05/09/2024 01:39 PM INDEX NO. 521865/2023 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 05/09/2024 CONFIDENTIAL Reports Checkbox Consent History Account Holder UUID 8d7f58e9-4e36-44bf-a6eb-349a07ff55cc Account Holder Name Elisheva Van Halem 2 rows returned on May 1, 2024, 10:29:07 PM (UTC) by avasquez Signup Timestamp UTC ▲ Signup Type Consent Timestamp UTC Consent Type 1. Dec 24, 2015, 3:27:17 AM android Jul 12, 2023, 5:30:17 PM post_signup_checkbox 2. Dec 24, 2015, 3:27:17 AM android Mar 24, 2021, 12:30:20 AM post_signup_checkbox CONFIDENTIAL FILED: KINGS COUNTY CLERK 05/09/2024 01:39 PM INDEX NO. 521865/2023 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 05/09/2024 EXHIBIT C FILED: KINGS COUNTY CLERK 05/09/2024 01:39 PM INDEX NO. 521865/2023 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 05/09/2024 EFFECTIVE DATE 2021-01-18 UBER TERMS FILED: KINGS COUNTY CLERK 05/09/2024 01:39 PM INDEX NO. 521865/2023 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 05/09/2024 Last modified: 1/18/2021 U.S. Terms of Use 1. Contractual Relationship These Terms of Use ("Terms") govern your access or use, from within the United States and its territories and possessions, of the multi-sided digital marketplace platform (“Uber Marketplace Platform”) and any related content or services (collectively, the “Services,” as more fully defined below in Section 3) made available in the United States and its territories and possessions by Uber Technologies, Inc. and its subsidiaries, representatives, affiliates, officers and directors (collectively, "Uber"). PLEASE READ THESE TERMS CAREFULLY, AS THEY CONSTITUTE A LEGAL AGREEMENT BETWEEN YOU AND UBER. In these Terms, the words "including" and "include" mean "including, but not limited to." By accessing or using the Services, you confirm your agreement to be bound by these Terms. If you do not agree to these Terms, you may not access or use the Services. These Terms expressly supersede prior agreements or arrangements with you regarding the use of the Services. Notwithstanding the foregoing, these Terms do not supersede or otherwise impact the enforceability of any agreements you may have with Uber or its subsidiaries regarding driving, delivering and/or providing transportation and/or delivery services (e.g., the Platform Access Agreement, the Technology Services Agreement and/or any similar agreements). To the extent (but only to the extent) any agreement you may have with Uber regarding driving, delivering and/or providing transportation and/or delivery services conflicts with these Terms, those agreements (and not these Terms) will prevail. Uber may immediately terminate these Terms or any Services with respect to you, or generally cease offering or deny access to the Services or any portion thereof, at any time for any reason. IMPORTANT: PLEASE BE ADVISED THAT THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOW CLAIMS BETWEEN YOU AND UBER CAN BE BROUGHT, INCLUDING THE ARBITRATION AGREEMENT (SEE SECTION 2 BELOW). PLEASE REVIEW THE ARBITRATION AGREEMENT BELOW CAREFULLY, AS IT REQUIRES YOU TO RESOLVE ALL DISPUTES WITH UBER ON AN INDIVIDUAL BASIS AND, WITH LIMITED EXCEPTIONS, THROUGH FINAL AND BINDING ARBITRATION (AS DESCRIBED IN SECTION 2 BELOW). BY ENTERING INTO THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND ALL OF THE TERMS OF THIS AGREEMENT AND HAVE TAKEN TIME TO CONSIDER THE CONSEQUENCES OF THIS IMPORTANT DECISION. Supplemental terms may apply to certain options or offers available through the Services, such as policies for a particular ride or logistics option (e.g., Uber Connect), event, program, activity, or promotion. Such supplemental terms will be disclosed to you in connection with the applicable option or offer. Supplemental terms are in addition to, and shall be deemed a part of, the Terms for the purposes of the applicable option or offer. Supplemental terms shall prevail over these Terms in the event of a conflict with respect to the applicable option or offer. Uber may make changes to these Terms from time to time. If Uber makes changes, it will provide you with notice of such changes, such as by sending an email, providing a notice through the Services, or updating the date at the top of these Terms. Unless Uber says otherwise in its notice, the amended Terms will be effective immediately and your continued access to and use of the Services after Uber provides such notice will confirm your acceptance of the changes. If you do not agree to the amended Terms, you must stop accessing and using the Services. FILED: KINGS COUNTY CLERK 05/09/2024 01:39 PM INDEX NO. 521865/2023 Uberʼs collection and use of personal information in connection with the Services is described in NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 05/09/2024 Uber's Privacy Notice located at https://www.uber.com/privacy/notice. 2. Arbitration Agreement By agreeing to the Terms, you agree that you are required to resolve any claim that you may have against Uber on an individual basis in arbitration as set forth in this Arbitration Agreement. This will preclude you from bringing any class, collective, or representative action against Uber, and also preclude you from participating in or recovering relief under any current or future class, collective, consolidated, or representative action brought against Uber by someone else. For the avoidance of doubt, this precludes you from bringing or participating in any kind of any class, collective, coordinated, consolidated, representative or other kind of group, multi-plaintiff or joint action against Uber. (a) Agreement to Binding Arbitration Between You and Uber. Except as expressly provided below in Section 2(b), you and Uber agree that any dispute, claim or controversy in any way arising out of or relating to (i) these Terms and prior versions of these Terms, or the existence, breach, termination, enforcement, interpretation, scope, waiver, or validity thereof, (ii) your access to or use of the Services at any time, (iii) incidents or accidents resulting in personal injury that you allege occurred in connection with your use of the Services, whether the dispute, claim or controversy occurred or accrued before or after the date you agreed to the Terms, or (iv) your relationship with Uber, will be settled by binding arbitration between you and Uber, and not in a court of law. This Agreement survives after your relationship with Uber ends. You acknowledge and agree that you and Uber are each waiving the right to a trial by jury or to bring or to participate as a plaintiff or class member in any class, purported class, collective, coordinated, consolidated, or representative proceeding. This Arbitration Agreement shall be binding upon, and shall include any claims brought by or against any third-parties, including but not limited to your spouses, heirs, third-party beneficiaries and assigns, where their underlying claims are in relation to your use of the Services. To the extent that any third-party beneficiary to this agreement brings claims against the Parties; those claims shall also be subject to this Arbitration Agreement. (b) Exceptions to Arbitration Notwithstanding the foregoing, this Arbitration Agreement shall not require arbitration of the following claims: (i) individual claims brought in small claims court so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis; (ii) individual claims of sexual assault or sexual harassment occurring in connection with your use of the Services; and/or (iii) injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party's copyrights, trademarks, trade secrets, patents or other intellectual property rights. Such claims may be brought and litigated in a court of competent jurisdiction by you on an individual basis only. On an individual basis means that you cannot bring such claims as a class, coordinated, consolidated, collective, or representative action against Uber. For the avoidance of doubt, this precludes you from bringing claims as or participating in any kind of any class, collective, coordinated, consolidated, representative or other kind of group, multi-plaintiff or joint action against Uber and no action brought by you may be consolidated or joined in any fashion with any other proceeding. Where your claims are brought and litigated to completion on such an individual basis in a court of competent jurisdiction, Uber agrees to honor your election. FILED: KINGS COUNTY CLERK 05/09/2024 01:39 PM INDEX NO. 521865/2023 The partiesʼ agreement not to require arbitration in these limited instances does not waive the NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 05/09/2024 enforceability of this Arbitration Agreement as to any other provision (including, but not limited to, the waivers provided for in Section 2(a), which will continue to apply in court as well as in arbitration), or the enforceability of this Agreement as to any other controversy, claim or dispute. (c) Rules and Governing Law. The arbitration will be administered by the American Arbitration Association ("AAA") in accordance with the AAAʼs Consumer Arbitration Rules (the "AAA Rules") then in effect, except as modified by this Arbitration Agreement. The AAA Rules are available at www.adr.org or by calling the AAA at 1- 800-778-7879. The parties agree that the arbitrator ("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 applicable, unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, or estoppel. If there is a dispute about whether this Arbitration Agreement can be enforced or applies to a dispute, you and Uber agree that the arbitrator will decide that issue. Notwithstanding any choice of law or other provision in the Terms, the parties agree and acknowledge that this Arbitration Agreement evidences a transaction involving interstate commerce and that the Federal Arbitration Act, 9 U.S.C. § 1 et seq. ("FAA"), will govern its interpretation and enforcement and proceedings pursuant thereto. It is the intent of the parties to be bound by the provisions of the FAA for all purposes, including, but not limited to, interpretation, implementation, enforcement, and administration of this Arbitration Agreement, and that the FAA and AAA Rules shall preempt all state laws to the fullest extent permitted by law. If the FAA and AAA Rules are found to not apply to any issue regarding the interpretation or enforcement of this Arbitration Agreement, then that issue shall be resolved under the laws of the state where you reside when you accept these Terms. Any dispute, claim, or controversy arising out of or relating to incidents or accidents resulting in personal injury (including but not limited to sexual assault or harassment claims) that you allege occurred in connection with your use of the Services, whether before or after the date you agreed to the Terms, shall be governed by and construed in accordance with the laws of the state in which the incident or accident occurred. (d) Process. Pre-Arbitration Dispute Resolution and Notification. Prior to initiating an arbitration, you and Uber each agree to notify the other party in writing of any dispute and to attempt to negotiate an informal resolution. Notice of the dispute must include the partyʼs name, preferred contact information, a brief description of the dispute, and the relief sought. Notice to Uber must be sent to Uber Technologies, Inc., Attn: Legal Department, 1515 3rd Street, San Francisco, CA 94158. Neither party shall initiate arbitration until 30 days after the notice is sent. Engaging in this pre-arbitration dispute resolution and notification process is a requirement that must be fulfilled before commencing arbitration. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the informal resolution process required by this paragraph. Initiating Arbitration. In order to initiate arbitration, a party must provide the other party with a written Demand for Arbitration and file the Demand with AAA as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration - Consumer Arbitration Rules at www.adr.orgor by calling the AAA at 1-800-778-7879). A party initiating an arbitration against Uber must send the written Demand for Arbitration to Uber Technologies, Inc., LLC, Attn: Legal Department, 1515 3rd FILED: KINGS COUNTY CLERK 05/09/2024 01:39 PM INDEX NO. 521865/2023 Street, San Francisco, CA 94158, or serve the Demand on Uberʼs registered agent for service of NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 05/09/2024 process, c/o Uber Technologies, Inc. (the name and current contact information for the registered agent in each state are available online here). The Arbitrator will be either (1) a retired judge or (2) an attorney licensed to practice law in the state where the arbitration is conducted. The Arbitrator will be selected by the parties from the AAA's National Roster of Arbitrators. If the parties are unable to agree upon an Arbitrator after a good faith meet and confer effort, then the AAA will appoint the Arbitrator in accordance with the AAA Rules. (e) Location and Procedure. Unless you and Uber otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and Uber submit to the Arbitrator, unless you request a hearing or the Arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the Arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration. (f) Arbitrator's Decision. The Arbitrator will render an award within the time frame specified in the AAA Rules. Judgment on the arbitration award may be entered in any court having competent jurisdiction to do so. The Arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant's individual claim. An Arbitratorʼs decision shall be final and binding on all parties. An Arbitratorʼs decision and judgment thereon shall have no precedential or collateral estoppel effect. If you prevail in arbitration you may seek an award of attorneys' fees and expenses to the extent permitted under applicable law. Uber will not seek, and hereby waives all rights Uber may have under applicable law to recover attorneys' fees and expenses if Uber prevails in arbitration. (g) Fees. Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. (h) Severability and Survival. If any portion of this Arbitration Agreement is found to be unenforceable or unlawful for any reason, (1) the unenforceable or unlawful provision shall be severed from these Terms; (2) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of the Arbitration Agreement or the partiesʼ ability to compel arbitration of any remaining claims on an individual basis pursuant to the Arbitration Agreement; and (3) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration. 3. The Marketplace Platform & Services Uber operates a multi-sided digital marketplace platform that is offered in a number of forms, including mobile and/or web based applications (“Applications”). Among other things, the Uber Marketplace Platform enables you to receive: (i) services rendered by Uber that facilitate your connection to independent third party providers, including drivers and restaurants (“Third Party Providers”), for the purchase of services or goods, such as transportation, logistics and/or delivery services from those Third Party Providers; and (ii) any related content or services, including y y g 05/09/2024 FILED: KINGS COUNTY CLERK 05/09/2024 01:39 PM INDEX NO. 521865/2023 payment processing and customer support. The Uber Marketplace Platform and the Uber content or NYSCEF DOC. NO. 37 RECEIVED NYSCEF: services described in this Section are collectively referred to as “the Services”. Unless otherwise agreed by Uber in a separate written agreement with you, the Services are made available solely for your personal, noncommercial use. YOU ACKNOWLEDGE THAT YOUR ABILITY TO OBTAIN TRANSPORTATION, LOGISTICS AND/OR DELIVERY SERVICES FROM THIRD PARTY PROVIDERS THROUGH THE USE OF THE UBER MARKETPLACE PLATFORM AND SERVICES DOES NOT ESTABLISH UBER AS A PROVIDER OF TRANSPORTATION, LOGISTICS OR DELIVERY SERVICES OR AS A TRANSPORTATION OR PROPERTY CARRIER. UBER IS NOT A COMMON OR MOTOR CARRIER, DOES NOT TRANSPORT YOU, AND USE OF THE UBER MARKETPLACE PLATFORM IS ONLY OPEN TO REGISTERED USERS OF THE UBER MARKETPLACE PLATFORM AND NOT TO THE GENERAL PUBLIC. YOU ACKNOWLEDGE THAT INDEPENDENT THIRD PARTY PROVIDERS, INCLUDING DRIVERS ARE NOT ACTUAL AGENTS, APPARENT AGENTS, OSTENSIBLE AGENTS, OR EMPLOYEES OF UBER IN ANY WAY. YOU ALSO ACKNOWLEDGE THAT ANY SAFETY RELATED EFFORT, FEATURE, PROCESS, POLICY, STANDARD OR OTHER EFFORT UNDERTAKEN BY UBER, IN THE INTEREST OF PUBLIC SAFETY (WHETHER REQUIRED BY APPLICABLE REGULATIONS OR NOT), IS NOT AN INDICIA OF AN EMPLOYMENT, ACTUAL AGENCY, APPARENT AGENCY, OR OSTENSIBLE AGENCY RELATIONSHIP WITH AN INDEPENDENT THIRD PARTY DRIVER. License. Subject to your compliance with these Terms, Uber grants you a limited, non-exclusive, non- sublicensable, revocable, non-transferable license to: (i) access and use the Applications on your personal device solely in connection with your use of the Services; and (ii) access and use any content, information and related materials that may be made available through the Services, in each case solely for your personal, noncommercial use. Any rights not expressly granted herein are reserved by Uber and Uber's licensors. Restrictions. You may not: (i) remove any copyright, trademark or other proprietary notices from any portion of the Services; (ii) reproduce, modify, prepare derivative works based upon, distribute, license, lease, sell, resell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Services except as expressly permitted by Uber; (iii) decompile, reverse engineer or disassemble the Services except as may be permitted by applicable law; (iv) link to, mirror or frame any portion of the Services; (v) cause or launch any programs or scripts for the purpose of unduly burdening or hindering the operation and/or functionality of any aspect of the Services; or (vi) attempt to gain unauthorized access to or impair any aspect of the Services or its related systems or networks. Third Party Services and Content. The Services may be made available or accessed in connection with third party services and content (including advertising) that Uber does not control. Once you click on a link to third party services or content, you will be subject to the terms and conditions and privacy policy of that website, destination, or third party service provider. Uber will not warn you that you have left the Services or that you are subject to the terms and conditions (including privacy policies) of another website, destination, or third party service provider. You use all links in third party websites and advertisements at your own risk as these are not part of the Services and are not controlled by Uber. You acknowledge that different terms of use and privacy policies may apply to your use of FILED: KINGS COUNTY CLERK 05/09/2024 01:39 PM INDEX NO. 521865/2023 such third party services and content. Uber does not endorse such third party services and content NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 05/09/2024 and in no event shall Uber be responsible or liable for any products or services of such third party providers. App Stores. You acknowledge and agree that the availability of the Applications may be dependent on the third party from which you received the Applicationʼs license, e.g., the Apple iPhone or Android app stores (“App Store”). You acknowledge and agree that this Agreement is between you and Uber and not with the App Store and that Uber is responsible for the provision of Services as described in this Agreement. However, if you downloaded the Application from the Apple App Store, Apple and its subsidiaries are third-party beneficiaries of this Agreement. Upon your acceptance of this Agreement, Apple shall have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third-party beneficiary thereof. This Agreement incorporates by reference Appleʼs Licensed Application End User License Agreement, for purposes of which, you are “the end-user.” In the event of a conflict in the terms of the Licensed Application End User License Agreement and this Agreement, the terms of this Agreement will control. Ownership. The Services and all rights therein are and shall remain Uber's property or the property of Uber's licensors. Neither these Terms nor your use of the Services convey or grant to you any rights in or related to the Services except for the limited license granted above. You agree that you will not use Uberʼs trademarks, service marks, or trade dress or any similar names, marks, or trade dress (“Uberʼs Marks”), aside from use incidental to your use of the Services, without express, written permission from Uber. This prohibition on using Uberʼs Marks includes, but is not limited to, use in domain names, websites, and social media accounts. 4. Access and Use of the Services User Accounts. In order to use most aspects of the Services, you must register for and maintain an active personal user Services account ("Account"). You must be at least 18 years of age, or the age of legal majority in your jurisdiction (if different than 18), to obtain an Account, unless a specific Service permits otherwise. You cannot register for or maintain an Account if you have previously been banned from accessing or using the Services. Account registration requires you to submit to Uber certain personal information, such as your name, address, mobile phone number and age, as well as at least one valid payment method supported by Uber. For more information regarding Uberʼs use of your personal information, please see our Privacy Notice currently available at https://privacy.uber.com/policy/. You agree to maintain accurate, complete, and up-to-date information in your Account, including a valid phone number, address and payment method. Your failure to comply with these Terms (including policies and supplemental terms) including, without limitation, your failure to maintain accurate, complete, and up-to-date Account information, including having an invalid or expired payment method on file, may result in your inability to access or use the Services. You are responsible for all activity that occurs under your Account, and you agree to maintain the security and secrecy of your Account username and password at all times. Unless otherwise permitted by Uber in writing, you may only possess one Account. User Requirements and Conduct. You agree to abide by the Uber Community Guidelines, available here. Failure to comply with the Community Guidelines or any violation of these terms may result in the permanent loss of access to FILED: KINGS COUNTY CLERK 05/09/2024 01:39 PM INDEX NO. 521865/2023 the Services. NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 05/09/2024 The Services are not available for use by persons under the age of 18. You may not authorize third parties to use your Account, and you may not allow persons under the age of 18 to receive transportation, delivery or logistics services from Third Party Providers unless they are accompanied by you. You may not assign or otherwise transfer your Account to any other person or entity. You agree to comply with all applicable laws when accessing or using the Services, and you may only access or use the Services for lawful purposes (e.g., no transport of unlawful or hazardous materials). You may not in your access or use of the Services cause nuisance, annoyance, inconvenience, or property damage, whether to the Third Party Provider or any other party. If you request a ride option with a car seat, you acknowledge and agree that neither Uber nor the Third Party Provider is responsible for the safety of a child restraint/car seat that may be available in the Third Party Providersʼ Vehicle. You acknowledge and agree that it is your obligation to ensure that the car seat is installed correctly and that the child is properly secured in the seat. If you request a ride option where a driver agrees to provide you with assistance outside of the vehicle (e.g., Uber Assist), you acknowledge and agree that neither Uber nor the Third Party Provider is responsible for any injury or incident that may arise out of the assistance provided by the Third Party Provider. In certain instances you may be asked to provide proof of age, identity or other method of identity verification to access or use the Services, and you agree that you may be denied access to or use of the Services if you refuse to provide proof of age, identity or other method of identity verification. Subject to the discretion of a Third Party Provider, you may be allowed to bring a small animal, such as a dog or cat, on a ride requested through the Uber Marketplace Platform. For such trips, you are responsible for properly securing the animal with a leash, harness, crate / carrier, or through other means. You are also responsible for ensuring that the animal does not cause damage or a mess in the Third Party Providerʼs vehicle. You may be subject to a Charge for Repair or Cleaning under Section 5 for any damage or mess caused by an animal that is transported during a ride requested under your Account. Please note, in accordance with Uber's policies on service animals and assistive devices, service animals are generally permitted to accompany riders without extra charge, regardless of whether it is a Pet Friendly Trip. Text Messaging and Telephone Calls. You agree that Uber Technologies, Inc., and its subsidiaries, representatives, affiliates, officers and directors, may contact you by telephone or text messages (including by an automatic telephone dialing system and/or with an artificial or pre-recorded voice) at any of the phone numbers provided by you or on your behalf in connection with an Uber account, including for marketing purposes. You understand that you are not required to provide this consent as a condition of purchasing any property, goods or services. You also understand that you may opt out of receiving text messages from Uber at any time, either by replying “STOP”, texting the word "STOP" to 89203 using the mobile device that is receiving the messages, or by contacting help.uber.com. If you do not choose to opt out, Uber may contact you as outlined in its User Privacy Notice, located at https://www.uber.com/privacy/notice. You agree that Uber may contact you using any of the phone numbers you provided in connection with an Uber account (including via text or voice-recorded message) or your email address in the case of suspected fraud or unlawful activity. User Provided Content. Uber may, in Uber's sole discretion, permit you from time to time to submit, upload, publish or otherwise make available to Uber through the Services textual, audio, and/or visual content and information, and submission of entries for competitions and promotions ("User Content"). Any User Content provided by you remains your property. However, by providing User Content to Uber, you FILED: KINGS COUNTY CLERK 05/09/2024 01:39 PM INDEX NO. 521865/2023 grant Uber a worldwide, perpetual, irrevocable, transferable, royalty-free license, with the right to NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 05/09/2024 sublicense, to use, copy, modify, create derivative works of, distribute, publicly display, publicly perform, and otherwise exploit in any manner such User Content in all formats and distribution channels now known or hereafter devised (including in connection with the Services and Uber's business and on third party sites and services), without further notice to or consent from you, and without the requirement of payment to you or any other person or entity. You represent and warrant that: (i) you either are the sole and exclusive owner of all User Content or you have all rights, licenses, consents and releases necessary to grant Uber the license to the User Content as set forth above; and (ii) neither the User Content, nor your submission, uploading, publishing or otherwise making available of such User Content, nor Uber's use of the User Content as permitted herein will infringe, misappropriate or violate a third party's intellectual property or proprietary rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation. You agree to not provide User Content that is defamatory, libelous, hateful, violent, obscene, pornographic, unlawful, or otherwise offensive, as determined by Uber in its sole discretion, whether or not such material may be protected by law. Uber may, but shall not be obligated to, review, monitor, and remove User Content, at Uber's sole discretion and at any time and for any reason, without notice to you. User Feedback. As Uber respects your rights to your ideas, please do not submit any confidential ideas, information, or suggestions in any form to Uber or any of its affiliates. For any ideas, information, or suggestions you do submit, regardless of what your communication regarding your submissions says, you understand that your submissions are voluntary and the following terms shall apply to your submissions: (i) your submissions and their contents will automatically become the property of Uber, without any compensation to you; (ii) Uber has no obligation to review your submissions; (iii) Uber may implement and distribute any portion of your submissions and their contents for any purpose in any way, without any compensation to you; and (iv) Uber has no obligation to keep your submissions confidential. Network Access and Devices. You are responsible for obtaining the data network access necessary to use the Services. Your mobile network's data and messaging rates and fees may apply if you access or use the Services from your device. You are responsible for acquiring and updating compatible hardware or devices necessary to access and use the Services and Applications and any updates thereto. Uber does not guarantee that the Services, or any portion thereof, will function on any particular hardware or devices. In addition, the Services may be subject to malfunctions and delays inherent in the use of the Internet and electronic communications. 5. Payment You understand that use of the Services may result in charges to you for the services or goods you receive ("Charges"). Uber will enable your payment of the applicable Charges for services or goods obtained through your use of the Services. Charges will include applicable taxes where required by law. Charges may include other applicable fees, product return fees, cancellation fees, estimated or actual tolls, and/or surcharges. Further, you acknowledge and agree that Charges applicable in certain geographical areas may increase substantially during times of high demand or due to other marketplace factors. FILED: KINGS COUNTY CLERK 05/09/2024 01:39 PM INDEX NO. 521865/2023 All Charges and payments will be enabled by Uber using the preferred payment method designated NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 05/09/2024 in your Account, after which you will receive a receipt. If your primary Account payment method is determined to be expired, invalid or otherwise not able to be charged, you agree that Uber may use a secondary payment method in your Account, if available. Charges paid by you are final and non- refundable, unless otherwise determined by Uber. As between you and Uber, Uber reserves the right to establish or adjust Charges for any or all services or goods obtained through the use of the Services at any time. Uber will use reasonable efforts to inform you of Charges that may apply, provided that you will be responsible for Charges incurred under your Account regardless of your awareness of such Charges or the amounts thereof. Certain users may from time to time receive promotional offers and discounts that may result in different amounts charged for the same or similar services or goods obtained through the use of the Services, and you agree that such promotional offers and discounts, unless also made available to you, shall have no bearing on your use of the Services or the Charges applied to you. Promotional offers and discounts are subject to change or withdrawal at any time and without notice. You may elect to cancel your request for Services at any time prior to the commencement of such Services, in which case you may be charged a cancellation fee on a Third Party Providerʼs behalf. With respect to Third Party Providers, Charges you incur will be owed directly to Third Party Providers, and Uber will collect payment of those charges from you, on the Third Party Providerʼs behalf as their limited payment collection agent, and payment of the Charges shall be considered the same as payment made directly by you to the Third Party Provider. In such cases, you retain the right to request lower Charges from a Third Party Provider for services or goods received by you from such Third Party Provider at the time you receive such services or goods, and Charges you incur will be owed to the Third Party Provider. Uber will consider in good faith any request from a Third Party Provider to modify the Charges for a particular service or good. This payment structure is intended to fully compensate a Third Party Provid