Instacart Developer Platform Terms and Conditions

Last Updated: July 3, 2024

These Instacart Developer Platform Terms and Conditions (the “Agreement”) govern your access and use and access of the Instacart API Materials.

1. DEFINITIONS.

   1. “Applicable Law(s)” means all applicable federal, state, and local laws, rules, regulations, orders, decrees, directives, or ordinances.
   2. “Application” means the software application or website that you use to access and use the Instacart API Materials, including access of Instacart API using the API Key.
   3. “API” means an application programming interface for a service or software program.
   4. “API Key” means the confidential alphanumeric or cryptographic keys that are uniquely associated with your accounts provided by Instacart to you for your use of the Instacart API Materials.
   5. “API Updates” means bug fixes, updates, upgrades, enhancements, modifications and new releases or versions of the Instacart API.
   6. “Authorized Users” means you and your employees and independent contractors who access and use the Instacart API Materials on your behalf.
   7. “Beta Services” means pre-release or beta features that are in development by us and not yet available to the public.
   8. “Confidential Information” means any data, specifications, software, material, and information of a confidential nature made available/disclosed by or on behalf of us hereunder which you know or should know that we regard as confidential including those related to the (a) Instacart API Materials; (b) Instacart Data; and (c) Instacart Platform, including our business plans, strategies, know how, marketing plans, suppliers, sources of materials, finances, business relationships, personally identifiable end-user information, pricing, technology, employees, trade secrets, data related to purchases and/or transactions on Instacart Platforms.
   9. “Covered PI” shall have the meaning set forth in the Instacart Privacy Addendum.
   10. “Customer” means any individual that visits or transacts via the Instacart Platform.
   11. “Developer Account” means your account to access Instacart API materials.
   12. “Developer Content” means that content you provide in an Application or to the Instacart API Materials, including files, information, data, images, videos, or computer programs, except that Developer Content does not include Merchant Content or other Instacart Materials.
   13. “Developer System” means your networks, operating system and software of your web servers, routers, databases, and computer systems.
   14. “Feedback” means any suggestions, enhancement requests, and recommendations regarding the Instacart Materials or Merchant Content.
   15. “Instacart API(s)” means the API(s) provided by us to you under this Agreement and available at https://docs.instacart.com/developer_platform_api/ (as may be updated by us from time to time).
   16. “Instacart API Materials” means (a) Instacart API; (b) the requirements provided by us to you for interfacing to the Instacart API, which may include Required Minimum Functionality; (c) the Instacart Developer Guidelines; (d) any other software provided by us under this Agreement; (e) any related materials or documents related to the foregoing; and (f) any support or other assistance provided by or on behalf us in connection with this Agreement.
   17. “Instacart Data” means any and all data or information, including but not limited to Covered PI, transmitted by or on behalf of us to you through the Instacart API or otherwise and any usage data derived from the Instacart API as contemplated under this Agreement.
   18. “Instacart Developer Guidelines” means the Instacart Platform Developer Guidelines, available at https://docs.instacart.com/developer_platform_api/ (as may be updated by us from time to time).
   19. “Instacart Checkout” means Instacart’s checkout experience that allows Customers to enter their shipping information and payment details after adding item(s) to their cart and before placing an order. For clarity, Instacart Checkout includes checkouts that occur through the Instacart Checkout API.
   20. “Instacart Marks” means trade names, trademarks, logos, or other distinctive brand features of Instacart.
   21. “Instacart Marks Guidelines” means those Instacart Marks guidelines, available at https://heyitsinstacart.com/ (as may be updated by us from time to time), and other guidelines and policies we may make available to you from time to time.
   22. “Instacart Materials” means (a) Instacart API Materials; (b) Instacart Data; (c) Instacart Platform; (d) Confidential Information; (e) Instacart Marks; (f) Instacart Marks Guidelines; and (g) any other content, data or materials provided or used in connection with, or generated by, the Instacart API Materials, together with any related intellectual property rights.
   23. “Instacart Privacy Policy” means the Instacart Privacy Policy, available at https://www.instacart.com/company/privacy (as may be updated by us from time to time).
   24. “Instacart Related Entity/ies” means any entity that directly or indirectly controls, is controlled by, or is under common control with, Instacart; where “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management policies of another, whether through the ownership of voting securities, by contract, as trustee or executor, or otherwise.
   25. “Instacart Terms” means the Instacart Terms and Conditions, available at https://www.instacart.com/terms (as may be updated by us from time to time).
   26. “Instacart Platform” means (a) https://www.instacart.com and related applications and websites operated by or for any Instacart affiliate; (b) the Instacart website or portal which provides access to the Instacart API Materials and related information; and (c) any other related website or portal designated by us from time to time.
   27. “Instacart Data Processing Agreement” means the data processing addendum, available at https://instacart.safebase.us/?itemName=legal&source=click&itemUid=c4223a81-5840-4e11-ac9f-2b812794a67e (as may be updated by us from time to time).
   28. “Merchant” means an individual or business that uses the Instacart Platform to sell products or services.
   29. “Merchant Content” means (a) certain information from a Merchant made available to you through the Instacart API Materials, including Customer information, product costs, product prices, product names, finances, and Customer data; and (b) any files, data sets, materials, documents, names, email addresses, comments, notes, links and other content, data and information made available in connection with the foregoing.
   30. “Purpose” shall have the meaning set forth in Section 2.3 below.
   31. “Required Minimum Functionality” means the scope of integration and other technical requirements for the integration of the Instacart API, as it may be specified in the Instacart API Materials.

2. OVERVIEW.

   1. Relationship. This Agreement is entered into by Maplebear Inc. dba Instacart (“we”, “us”, “our”, or “Instacart”) and the individual or entity accessing and using API Materials (“you”, “your”, or “Developer”).
   2. Representations. You represent and warrant that (a) you have the right, power, and authority to enter into this Agreement, including if you are entering into this agreement on behalf of an entity, you have the authority to bind that entity to this Agreement and by accepting the Agreement, you are doing so on behalf of that entity (and all references to “you” herein refer to that entity); (b) you are not a citizen of, or located within, a nation that is subject to U.S. trade sanctions or other significant trade restrictions or you have not been identified on any U..S. government restricted party list; (c) Developer Content and Applications will not violate, misappropriate, or infringe upon the rights of any third party and you have the requisite rights in such to provide the permissions and licenses hereunder; (d) the Application and Developer Content will comply with this Agreement.
   3. Purpose. The Instacart APIs are being made available for you to enable you to integrate with the Instacart Platform to (a) direct users to the Instacart Platform and/or (b) display certain Merchant Content and Instacart Materials in conjunction with Developer Content (the “Purpose”).
   4. Compliance. You will comply with (a) all Applicable Laws related to (i) your access and use of the Instacart Materials and Merchant Content hereunder, and (ii) your Application; and (b) the terms and conditions of this Agreement as well as all terms and conditions applicable to the Instacart Materials that may be posted by or on behalf of us on the Instacart Platform or otherwise communicated by or on behalf of us to you from time to time, and as may be amended by Instacart, including the Instacart Privacy Policy, Instacart Terms, and Developer Guidelines, (collectively, such posted terms, the “Terms”) which are incorporated into the Agreement.
   5. Order of Precedence. In the event of a conflict between this Agreement and the Terms, this Agreement will control.
   6. Modification. We may modify any or all terms of this Agreement from time to time. In the event we do so, we will post the most current version of the Agreement to the Instacart Developer Platform portal portal and your continued use of the Instacart API Materials will constitute your acceptance of any such modification. If you do not agree to any changes, your sole recourse is to discontinue your use of the Instacart Materials.

3. ACCESS AND USE.

   1. Limited Access and Use. You may access and use Instacart Materials and Merchant Content only as expressly permitted in this Agreement, including all documents and terms incorporated herein by reference, and solely for the Purpose. Further, you agree to comply with any attribution requirements that we communicate to you in connection with the use of Instacart API Materials, which may include, but is not limited to displaying third party copyright notices.
   2. Authorized Users. You are responsible for your Authorized User, including their acts and omissions hereunder. We reserve the right to restrict, modify, and/or remove access and use of any Authorized User hereunder in our sole discretion.
   3. Developer Account/Instacart API Key. You are required to create a Developer Account. We will provide you with any Instacart API Keys that permit you to access the Instacart API Materials. You will not share, or permit any third party to share, passwords, usernames/IDs, or the Instacart Key with any third party or access or your Developer Account in any manner that would jeopardize the security of such account. In the event you become aware of any unauthorized access and/or use to the Developer Account you will promptly notify us in writing. You are responsible for the accuracy of all information you provide in the Developer Account. Instacart API Keys are our exclusive property and we may revoke access in the event you share such with any third party (other than as expressly permitted herein) at any time.
   4. Required Minimum Functionality. For any Applications that you make available, you must expose at least as much functionality as is set forth in the Required Minimum Functionality, if any, and in this section (“RMF Requirements”). In the event the RMF Requirements include a particular function, all aspects of that function and all Instacart API calls related to that function must be enabled and exposed. You must adhere to any changes made by us to the RMF Requirements and ensure that any additional functionality added to the RMF Requirements are enabled and exposed within a time period established by us in our sole discretion. In the event you do not, then we reserve the right to suspend your access to the Instacart APIs.
   5. Restrictions. You will not (a) use the Instacart Materials or Merchant Content for any illegal, unauthorized, or otherwise improper purposes, or in any manner that would violate this Agreement, or in any manner that would breach any Applicable Laws; (b) remove any legal, copyright, trademark, or other proprietary rights or notices contained in or on Instacart Materials or Merchant Content; (c) sell, lease, share, transfer, sublicense, or fail to protect the confidentiality of any Instacart Materials or Merchant Content obtained through this Agreement, directly or indirectly, to any third party, including any delivery or ecommerce company, data broker, ad network, ad exchange, or other advertising or data monetization-related party; (d) use for your own benefit the Instacart Materials or Merchant Content; (e) use any means or form of scraping or data extraction to access, query or otherwise collect data and information from the Instacart Platform, unless otherwise explicitly permitted herein or authorized in writing by Instacart; (f) interfere with or disrupt Instacart Platform or servers or networks connected to Instacart services; (g) disobey any requirements, procedures, policies or regulations of networks connected to Instacart Platform; or (h) transmit to Instacart any viruses, worms, defects, Trojan horses, any items of a destructive nature or similar disabling software or code that does or can disable, damage, corrupt, interfere with or delete any element of software, data, computer or electronic records or files of Instacart, including any such code that allows you or any third party to access or to perform any unauthorized operations on Instacart computer systems; (i) bypass any Instacart API restrictions for any reason; (j) except as authorized by Instacart in writing, substantially replicate products or services offered by Instacart, including the Instacart API; (k) use Instacart Materials or Merchant Content on or with sites/platforms (i) to promote unsafe conduct, (ii) to provide medical advice; (iii) that include inappropriate or discriminatory content, (iv) display priced items from multiple retailers on the same screen within any Application; or (l) move, copy, compare, or transfer items from one retailer basket to another retailer basket within an Application; (m) develop Applications that excessively burden the Instacart system, distribute spyware, adware or other commonly objectionable programs; (n) develop an Application whose primary purpose is to migrate end users off of Instacart; (o) request more than the minimum amount of data from a Instacart API needed by your Application to provide the intended functionality; (p) falsify or alter any unique identifier in, or assigned to your Application, or otherwise obscure or alter the source of queries coming from an Application; (q) include code in any Application which performs any operations not related to the services provided by the Application, including embedding or incorporating code into any Application which utilizes the resources (including CPU resources) of another computer, including for the purposes of cryptocurrency mining; or (r) use an alternative to Instacart Platform checkout for web checkout or payment processing, or register any transactions through the Instacart API in connection with such activity, without our express written authorization. For purposes of clarification only, you are expressly prohibited from using any data generated from an end user’s interactions with the Instacart API and applicable Application to create user profiles, target users, or develop any product or service that competes with our business, as reasonably determined by us, including our advertising business.
   6. API Limits. We may set and enforce limits on your use of the Instacart API (limiting the number of requests that you may make or the number of Merchants available), in our sole discretion. You agree to, and will not attempt to circumvent such limitations, including those documented provided to you by or on behalf of us in writing and/or made available in your Developer Account. If you would like to use any Instacart API beyond these limits, you must obtain Instacart's express written consent (and Instacart may decline such request or condition acceptance on your agreement to additional terms and/or charges for that use). To seek such approval, contact us via the Developer Account by following the Contact Technical Support link.
   7. Application Development. You are solely responsible for Applications and Developer Content, including any testing, distribution, display, costs, expenses, and liabilities. We are not required to provide you any assistance to your development and integration of an Application; however, in the event we elect to do so, any assistance from us is provided “as is” and without any warranty of any kind.
   8. Applications Submission. Instacart may require, in its sole discretion, you submit an application to receive access to the data and material hereunder and receive the right to approve or disapprove such application in its sole discretion.
   9. Monitoring. Without limiting our rights in the inspection section below, you agree that we may monitor your access and use of the Instacart API Materials, Instacart Data, and/or Merchants Content to ensure quality, improve our products and services, and verify your compliance with this Agreement. This monitoring may include our accessing and using your Application to identify security issues that could affect us, our Customers, or Merchants. You will not interfere with this monitoring and we may use any technical means to overcome any such interference. We may immediately suspend access to the Instacart API Materials by you or your Application with or without notice if we reasonably believe that you are in violation of this Agreement.

4. MODIFICATIONS TO INSTACART APIS.

   1. Updates. We reserve the right to require you to install or update any and all software to continue using the Instacart API and the Instacart Platform. You acknowledge that Instacart may make API Updates from time to time, and at its sole discretion. You must implement and use the most current version of the Instacart API and make any changes to your Application that are required as a result of such API Update, at your sole cost and expense. API Updates may adversely affect the manner in which your Application accesses or communicates with the Instacart API. Your continued access or use of the Instacart API following an update or modification will constitute binding acceptance of the API Update.
   2. Access and Use. We may change or discontinue the availability of some or all of the Instacart API at any time for any reason with or without notice. Such changes may include removal of features, or the requirements of fees for previously free features. We may also impose limits on certain features and services or restrict your access to some or all of the Instacart API. Your continued use of the Instacart API following a subsequent release will be deemed your acceptance of such API Update.
   3. Beta Services. From time to time, we may, in its sole discretion, invite you to use, on a trial basis, Beta Services. Beta Services may be subject to additional terms and conditions, which Instacart will provide to you prior to your use of the Beta Services. Such Beta Services and all associated conversations and materials relating thereto will be considered Confidential Information and subject to the confidentiality provisions in this Agreement. We make no representations or warranties that the Beta Services will function. We may discontinue the Beta Services at any time in our sole discretion. We will have no liability for any harm or damage arising out of or in connection with a Beta Service. The Beta Services may not work in the same way as a final version. We may change or not release a final or commercial version of a Beta Service in our sole discretion.

5. LICENSE.

   1. Instacart. Subject to your compliance with this Agreement, we grant you a limited, non-transferrable, non-sublicensable, non-exclusive, revocable license during the Term to access and use (a) Instacart API Materials solely to the extent necessary in connection with developing, implementing and distributing your Application that interoperates or integrates with the Instacart Platform, and solely in the manner described in the Agreement and in the technical documentation contained in the Instacart API Materials; and (b) the Instacart Marks for the sole purpose of notifying Merchants that the Application is compatible with the Instacart Platform; provided, however, (i) it will use Instacart’s Marks only as permitted hereunder; and (ii) it will use the Instacart Marks in a lawful manner and in strict compliance with all format(s), guidelines, standards and other requirements prescribed by Instacart in the Instacart Marks Guidelines.
   2. Developer. You grant us a limited, non-transferrable, non-sublicensable, non-exclusive license during the Term to access and use (a) your Application for purposes of answering inquiries related to your Application, and verifying your compliance with this Agreement; (b) Developer Content, including reproduce, adapt, modify, publicly perform, publicly display and distribute, submitted through the Instacart API Materials for the purposes of your use of the Instacart API Materials in accordance with this Agreement; and (c) your Developer Content, trademarks and logos to publicize or advertise your use of the Instacart API Materials.

6. PROPRIETARY RIGHTS.

   As between you and us, we own and will continue to own Instacart Materials, including any and all derivatives thereof, which includes any modifications we may permit you to make to the Instacart Materials, and you own the Application and Developer Content. For avoidance of doubt, we do not acquire ownership in your Application by use of the Instacart APIs, and by using the Instacart API, you do not acquire ownership of any rights in the Instacart APIs or the content, data, and information that is accessed through the Instacart APIs. All permissions, licenses, or other rights (implied or otherwise) not expressly granted under this Agreement are expressly reserved.

7. CONFIDENTIAL INFORMATION.

   1. Use of Confidential Information. You agree (a) to hold the Confidential Information in confidence and to take reasonable precautions to protect such Confidential Information (including, without limitation, all precautions such party employs with respect to its own confidential materials); (b) not to disclose any Confidential Information to any third party, except to a service provider authorized in accordance with these Terms and you will remain liable to us for such service provider’s acts and omissions hereunder; and (c) not to use any Confidential Information except for the sole purposes set forth in this Agreement. Any employee given access to the Confidential Information must have a legitimate “need to know and shall be similarly bound in writing.
   2. Compelled Disclosure of Confidential Information. If you are required by Applicable Law to disclose the Confidential Information, you shall, to the extent legally permissible, give prompt written notice to us of such requirement before any such disclosure and shall assist us in obtaining an order protecting the Confidential Information from public disclosure.
   3. Exclusion to Confidential Information. Confidential Information shall not include information that (a) is already known to you without restriction prior to receipt from us; (b) is or becomes publicly known through no wrongful act of you; (c) is received from a third party without similar restriction and without breach of this Agreement; or (d) is approved in writing for release by us, which we may without in our sole discretion.
   4. Injunctive Relief. You acknowledge and agree that due to the unique nature of the Confidential Information, there may be no adequate remedy at law for any breach of your obligations hereunder and therefore, that upon any such breach or any threat thereof, we shall be entitled to seek appropriate equitable relief without the need to submit bond in addition to whatever remedies it might have at law.
   5. Non-Circumvention. You shall not use Confidential Information for the purpose of circumventing or attempting to circumvent directly or indirectly, the intent of this Agreement, including but not limited to, use of such Confidential Information to reverse-engineer proprietary technology and data.
   6. Destruction of Confidential Information. Notwithstanding anything to the contrary, upon termination or expiration of this Agreement, or sooner upon written request from us, you shall promptly delete, destroy, or render unreadable any Confidential Information, including the Instacart Data, in its control and/or possession and shall provide certification to us within five (5) business days thereof.
   7. Survival. Your obligation of confidentiality set forth herein will survive the expiration, termination, or cancellation of this Agreement.

8. SECURITY.

   1. Application. Your Application will be installed and run on your server or another server, and will not be run on our servers. Developer System must be properly configured to Internet industry standards so as to securely operate your Application and protect against unauthorized access to, disclosure or use of any information you receive from Instacart, including Instacart Data and Merchant Data. If you do not completely control some aspect of the Developer System, you will use all influence that you have over the Developer System to do so. You must diligently correct any security deficiency, and disconnect immediately any known or suspected intrusions or intruder.
   2. Security Measures. You have in place appropriate technical and organizational measures to protect Instacart API Materials, Instacart Data, Merchant Data, and Confidential Information from and against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access, and which provide a level of security appropriate to the risk represented by the processing and the nature of the Instacart API Materials, Instacart Data, Merchant Data, and Confidential Information and that complies with all Applicable Laws.
   3. Sub-processors. You will have in place procedures so that any third party you authorize to have access to the Instacart API Materials, Instacart Data, Merchant Data, and Confidential Information, including sub-processors, will respect and maintain the confidentiality and security of the Instacart API Materials, Instacart Data, Merchant Data, and Confidential Information. You are responsible for the acts and omissions of your sub-processors.
   4. Security Incident. You will promptly inform us of any unauthorized access, destruction, use, modification, or disclosure of any Instacart API Materials, Instacart Data, Merchant Data, and Confidential Information, unless such notification is prohibited by Applicable Law or requested to be withheld by law enforcement or investigators. You will notify us via email with read-receipt to security-incidents@instacart.com and a copy to legal@instacart.com and your primary business contact at Instacart.
   5. Inquiries. You shall promptly notify us of any regulatory inquiry or correspondence regarding Instacart API Materials, Instacart Data, Merchant Data, and Confidential Information (each an “Inquiry” and collectively “Inquiries”), unless such notification is prohibited by Applicable Law.

9. PRIVACY. To the extent you have access to, store or otherwise process (as “process” is defined in the Instacart Privacy Addendum) any Covered PI, (a) the Instacart Privacy Addendum shall apply and form part of the Agreement; and (b) we have the right to take reasonable and appropriate steps to ensure that you use the Covered PI consistent with “Privacy Laws” (as defined in the Instacart Privacy Addendum). You acknowledge that any breach of your covenants or obligations set forth in the Instacart Privacy Addendum or non-compliance with Privacy Laws may cause us irreparable harm for which monetary damages would not be adequate compensation and you agree that, in the event of such breach, threatened breach, or material non-compliance with Privacy Laws, we are entitled to seek equitable relief, including a restraining order, injunctive relief, specific performance and any other relief that may be available from any court, and without the need to submit a bond in addition to any other remedy to which Instacart may be entitled at law or in equity. Such remedies shall not be deemed to be exclusive but shall be in addition to all other remedies available at law or in equity. Notwithstanding anything to the contrary, in the event of a conflict between the terms of this Agreement and the terms of the Instacart Privacy Addendum, the Instacart Privacy Addendum shall prevail.

10. INSPECTION. We shall have the right to audit, or to appoint an independent auditor under appropriate non-disclosure conditions to audit your Applications, systems and records to confirm your compliance with the Agreement, including without limitation your compliance with ours requests and requests from Merchants or Customers, as applicable, to delete Merchant Content obtained through the Instacart API or otherwise through our performance hereunder. If requested, you must provide us with proof compliance with these Agreement.

11. DISCLAIMER OF WARRANTIES. THE INSTACART MATERIALS ARE PROVIDED TO YOU ”AS IS” AND “AS AVAILABLE” WITHOUT ANY REPRESENTATIONS, WARRANTIES OR COVENANTS OF ANY KIND. WE MAKE NO, AND HEREBY DISCLAIM ALL, REPRESENTATIONS OR WARRANTIES OF ANY KIND TO ANY PARTY, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, WITH RESPECT TO THE INSTACART MATERIALS, INCLUDING ALL WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE ABOVE, WE DO NOT REPRESENT OR WARRANT THAT THE INSTACART API MATERIALS ARE OR WILL BE APPROPRIATE OR AVAILABLE FOR USE IN ANY PARTICULAR JURISDICTION, WILL BE ERROR FREE, UNINTERRUPTED, OR FREE FROM HARMFUL COMPONENTS. THIS SECTION WILL BE ENFORCEABLE TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW.

12. LIMITATION OF LIABILITY. INSTACART AND INSTACART RELATED ENTITIES SHALL HAVE NO LIABILITY WITH RESPECT TO THE AGREEMENT, THE INSTACART MATERIALS OR OTHERWISE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING DAMAGES FOR LOSSES OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES RESULTING IN ANY WAY FROM THE AGREEMENT OR THE INSTACART MATERIALS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, INSTACART AND INSTACART RELATED ENTITIES TOTAL AGGREGATE LIABILITY TO YOU UNDER THE AGREEMENT FOR ANY REASON WILL BE LIMITED TO ONE HUNDRED UNITED STATES DOLLARS (USD $100). THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS. THE FOREGOING LIMITATIONS SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.

13. INDEMNIFICATION.

    1. You agree to indemnify, defend and hold harmless Instacart and any Instacart Related Entities and each such entity’s directors, officers, employees, subcontractors and agents (each, an “Indemnified Party”, and collectively, the “Indemnified Parties”), with respect to any claim, demand, cause of action, debt or liability, including reasonable attorneys’ fees (collectively, “Indemnification Claims”), to the extent that such claim is based upon or arises out of: (a) your breach of any representation, warranty, obligation or covenant under the Agreement; (b) your gross negligence or willful misconduct; (c) any warranty, condition, representation, indemnity or guarantee relating to Instacart and Instacart Related Entities granted by you to any third party; (d) your access to or use of the Instacart API Materials; (e) any third party claim that your products or services, including any Application, infringes the intellectual property or other rights of a third party; (f) the performance, non-performance or improper performance of your products or services, including any Application; and (g) a Data Breach.
    2. In claiming any indemnification hereunder, the Indemnified Party shall promptly provide you with written notice of any Indemnification Claim which the Indemnified Party believes falls within the scope of the indemnifications provided under the Agreement. The Indemnified Party may, at its own expense, assist in the defense if it so chooses, provided that you shall control such defense and all negotiations relative to the settlement of any such Indemnification Claim and further you shall obtain Indemnified Parties’ consent, prior to entering into a settlement or compromise or consenting to any injunctive relief with respect to any Indemnification Claim.
    3. In the event of any breach or threatened breach by you of any provision of Sections 3 (Access and Use), 6 (Proprietary Rights), 7 (Confidentiality), 8 (Security), or 9 (Privacy), in addition to all other rights and remedies available to Instacart under the Terms and under applicable law, Instacart shall have the right to (a) immediately enjoin all such activity, without the necessity of showing damages or posting bond or other security; (b) immediately terminate your rights under this Agreement; (c) receive a prompt refund of any amounts paid to you hereunder; and (d) be indemnified for any losses, damages or liability incurred by Instacart in connection with such violation, in accordance with the provisions of this Section 13.3.

14. TERMINATION.

    1. Termination By Instacart. Access to the Instacart API Materials may be terminated or suspended by us at any time and in our sole discretion. Without limiting the foregoing, we may immediately terminate your right to use the Instacart API if you breach the Agreement or any documents incorporated by reference in the Agreement.
    2. Termination By Developer. You may terminate the Agreement by discontinuing use of the Instacart API Materials and notifying us in writing that you have done so.
    3. Effect of Termination. Upon termination of the Agreement: (a) each party shall return to the other party, or destroy (and provide certification of such destruction), all property of the other party in its possession or control (including all Confidential Information); (b) you shall immediately cease displaying any Instacart Marks on any website or otherwise; and (c) all rights granted to you hereunder will immediately cease, including the right of your to access and use the Instacart API Materials.

15. Dispute Resolution & Arbitration Agreement

    1. Overview of Dispute Resolution Process. This Section 15 provides for a two-part process for dispute resolution: (a) an informal dispute resolution process directly with Instacart (described in Section 15.2, below), and if necessary; (b) 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 each retain the right to seek resolution of disputes in small claims court as an alternative to arbitration.
    2. Mandatory Informal Dispute Resolution. 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 notice must include at least the following information: the name and title of the signatory; the email address associated with the Developer 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. Your written description must be on an individual basis and personally signed by you and not by an attorney, agent, or representative. 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 the Developer Account. The initiating party must allow the other party sixty (60) days from the date the notice is sent 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 sixty (60) day period set forth above.

    3. Arbitration Agreement. If we’re unable to work out a solution amicably, both you and Instacart 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) this Agreement, 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 Instacart Materials; (iii) any transactions through, by, or using the Instacart Materials, including any goods or services purchased or sold through, by, or using the Instacart Materials 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 15.4 below) (the “Arbitration Agreement”). This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of this Agreement.
    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 Instacart Business Account (“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 any Retailer arising out of or related to the Services performed under this Agreement and/or services in connection with any white label sites that are powered by Instacart.
    5. Exceptions to Arbitration Agreement. Notwithstanding this mandatory Arbitration Agreement, you and Instacart 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 and Instacart agree that either party 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.
    6. Arbitration Procedure and Rules. For United States residents, all Claims submitted to binding arbitration under this Section shall be administered by JAMS in San Francisco, California. The arbitration shall be conducted in accordance with the JAMS Comprehensive Arbitration Rules & Procedures in effect on the Effective Date of this Agreement, subject to any modifications contained in this Agreement or this Section. If JAMS is not available to arbitrate, the parties will mutually select an alternative arbitral forum. The Claim shall be determined by one arbitrator, except that if the Claim involves an amount in excess of $1,000,000 (exclusive of interest and costs), three arbitrators shall be appointed. Unless the parties agree otherwise, if the Claim involves an amount less than or equal to $1,000,000 (exclusive of interest and costs), discovery will be limited to an exchange of directly relevant documents and no depositions will be taken except as needed in lieu of a live appearance. 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 out of or relates to this Arbitration Agreement, then that issue shall be resolved under and governed by the law of the State of Delaware. Judgment upon the award rendered may be entered in any court having jurisdiction. You acknowledge and agree that, with respect to any Claim within the scope of this arbitration agreement, you and Instacart each waive the right to bring, join, or participate in, either as a plaintiff or class member, any purported class, collective, or representative action or proceeding. By entering into the agreement to arbitrate in this Section, the parties knowingly and voluntarily waive their rights to have any Claim tried and adjudicated by a judge or a jury.

       For Canada residents, all Claims shall be resolved by binding arbitration administered by ICDR Canada in Toronto, Ontario in accordance with its Canadian Arbitration Rules. The language of arbitration shall be English. The number of arbitrators shall be one, except that if the Claim involves an amount in excess of $1,000,000 (exclusive of interest and costs), three arbitrators shall be appointed. Unless the parties agree otherwise, if the Claim involves an amount less than or equal to $1,000,000 (exclusive of interest and costs), discovery will be limited to an exchange of directly relevant documents and no depositions will be taken except as needed in lieu of a live appearance. By entering into this Agreement, you and Instacart each agree that, to the extent permitted by applicable law, any and all dispute resolution proceedings will be conducted only on an individual basis and not in a collective, consolidated, or on the basis of a joinder of proceedings. The agreement to arbitrate in this Section 26 shall apply to any Claim that arose prior to, on, or after the Effective Date of this Agreement and shall continue in full force and effect despite the expiration, rescission or termination of this Agreement. Judgment upon the award rendered may be entered in any court having jurisdiction. By entering into this Agreement, you and Instacart each agree that you shall only bring and pursue claims against Instacart in your individual capacity and further agree to not bring, pursue or act as a plaintiff, class representative, or class member in any purported class or collective proceeding. By entering into the agreement to arbitrate in this Section 26 the parties knowingly and voluntarily waive their rights to have any Claim tried and adjudicated by a judge or a jury.

16. GENERAL.

    1. Relationship of the Parties. The parties to this Agreement are independent contractors. Neither party is an agent, representative or related entity of the other party. Neither party shall have any right, power or authority to enter into any agreement for, or on behalf of, or incur any obligation or liability of, or otherwise bind, the other party. This Agreement shall not be interpreted or construed to create an association, agency, joint venture or partnership between the parties or to impose any liability attributable to such a relationship upon either party. There are no third party beneficiaries to the Agreement.
    2. Interpretation. Any headings appearing at the beginning of any section of this Agreement have been inserted for identification and reference purposes only and must not be used to construe or interpret this Agreement. Whenever required by context, a singular number will include the plural, the plural number will include the singular, and the gender of any pronoun will include all genders. The phrases ”including” or “includes” as used in this Agreement will not be construed as words of limitation and instead will be deemed to be followed by the words ”without limitation”. Whenever the words “hereunder,” “hereof,” “hereto,” and words of similar import are used in this Agreement, they will be deemed references to this Agreement as a whole and not to any particular section, or other provision hereof. The word “or” is used in the inclusive sense of “and/or.” The terms “or,” “any” and “either” are not exclusive.
    3. Non-Exclusivity. Nothing in this Agreement is intended to create, nor shall it be construed as creating, any exclusive arrangement between the parties to the Agreement. This Agreement shall not restrict either party from entering into similar arrangements with others, provided it does not breach its obligations under the Terms by doing so, including any confidentiality obligations.
    4. Feedback. In the event you provide Feedback, you hereby grants to us a worldwide, perpetual, irrevocable, fully paid-up, royalty-free, non-exclusive license to such Feedback, including for use or incorporation into the Instacart Materials, the rights to make derivative works therefrom or to otherwise commercially exploit in any way, without any restriction and without any payment.
    5. Insurance. Without limiting your liabilities or obligations, including indemnification, set forth herein, you shall maintain (a) commercial general liability insurance; and (b) errors and omissions/professional liability and cyber liability insurance with reasonably acceptable minimum limits consistent with industry standards and the type of data access and services provided hereunder.
    6. Export Control. Your access to and use of the Instacart API Materials are subject to compliance with the export control laws. You will be solely responsible for Your compliance with the export control laws and monitoring any modifications to them.
    7. Patent Non-Assertion. You and your affiliates covenant not to assert patent infringement claims against Instacart, Instacart Related Entities, or Instacart products and services, including the Instacart API.
    8. Competitive or Similar Materials. Instacart is not precluded from discussing, reviewing, developing for itself, having developed, acquiring, licensing, or developing for or by third parties, as well as marketing and distributing materials, products or services which are competitive with your products or services, including any Application, regardless of their similarity to your products or services, provided that Instacart does not use Developer Content in so doing.
    9. Publicity. You are not permitted to use Instacart Marks in any publicity release, promotional material, advertising, marketing, or other public statement without obtaining Instacart’s prior written consent, which may be withheld in Instacart’s sole discretion.
    10. Surviving Provisions. The following sections shall survive termination or expiration of this Agreement: 5, 6, 7, 11, 12, 13, 14, 15, and 16.
    11. Notice. Any notice, approval, request, authorization, direction or other communication under this Agreement shall be given in writing and shall be deemed to have been delivered and given for all purposes (a) on the delivery date if delivered personally, or by email to your email address listed in Developer Account, and to legal@Instacart.com; (b) two (2) business days after deposit with an internationally recognized commercial overnight courier service, with written verification of receipt; or (c) five (5) business days after deposit in certified or registered mail, return receipt requested, postage and charges prepaid, to the address provided in the Developer Account.
    12. No Waiver. The failure of either party to insist upon or enforce strict performance by the other party of any provision of this Agreement or to exercise any right under this Agreement shall not be construed as a waiver or relinquishment to any extent of such party’s right to assert or rely upon any such provision or right in that or any other instance; rather, the same shall be and remain in full force and effect. Each waiver shall be set forth in a written instrument signed by the waiving party.
    13. Severability. This Agreement will be enforced to the fullest extent permitted under Applicable Law. If any provision of the Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by Applicable Law, and the remaining provisions of the Agreement will remain in effect.
    14. Assignment. All the terms and provisions of this Agreement shall be binding upon and inure to the benefit of the parties to the Agreement and to their respective heirs, successors, permitted assigns and legal representatives. Instacart shall be permitted to assign this Agreement without notice to or consent from you. You shall have no right to assign or otherwise transfer the Agreement, or any of its rights or obligations hereunder, to any third party without our prior written consent, to be given or withheld in our sole discretion.
    15. Other Content. Merchant Content and/or the Instacart API Materials may include hyperlinks to other websites, content or resources. We have no control over any websites, content or resources that are provided by persons or entities other than us. We are not responsible for the availability of any such other websites, content or resources, and we do not endorse any advertising, products, or other materials on or available from or through such websites, content or resources.
    16. Controlling Law.
        1. To the extent permitted by applicable law, this Agreement will be governed by the laws of the State of Delaware for residents of the United States and by the laws of the Province of Ontario for residents of Canada (except Quebec), without respect to its conflicts of laws principles, except the Arbitration Agreement, which is governed by the laws outlined in Section 17 of these Terms. To the extent permitted by applicable law, any claims arising out of or relating to these Terms or use of the Services that are not subject to Section 15 (Dispute Resolution & Arbitration Agreement) of these Terms shall be brought exclusively in the federal or state courts of New Castle County, Delaware, USA, for the residents of the United States, and the courts of competent jurisdiction in the City of Toronto for residents of Canada (except Quebec), and you and Instacart consent to the personal jurisdiction of those courts.
        2. For Quebec residents only, to the extent permitted by law, this Agreement will be governed by the laws of the Province of Quebec without respect to its conflicts of laws principles. To the extent permitted by applicable law, any claims arising out of or relating to this Agreement or use of the Instacart API Materials that are not subject to Section 15 (Dispute Resolution & Arbitration Agreement) of these Terms shall be brought exclusively in the courts of competent jurisdiction in the City of Montreal, and you and Instacart consent to the personal jurisdiction of those courts.
    17. Entire Agreement. This Agreement, including the Terms, sets forth the entire agreement and supersedes any and all prior agreements, written or oral, of the parties with respect to the subject matter hereof (including any prior version of the Agreement).