Case 5:21-cv-03633-SVK Document 238 Filed 01/06/22 Page 1 of 22
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`
`
`KEKER, VAN NEST & PETERS LLP
`SHARIF E. JACOB - # 257546
`sjacob@keker.com
`DAVID SILBERT - # 173128
`dsilbert@keker.com
`NICHOLAS S. GOLDBERG - # 273614
`ngoldberg@keker.com
`PUJA PARIKH - # 331823
`pparikh@keker.com
`NIALL ROBERTS - # 311929
`nroberts@keker.com
`MAILE YEATS-ROWE - # 321513
`myeatsrowe@keker.com
`NICHOLAS GREEN - # 323959
`ngreen@keker.com
`
`633 Battery Street
`San Francisco, CA 94111-1809
`
`MORRISON & FOERSTER LLP
`MICHAEL A. JACOBS - #111664
`mjacobs@mofo.com
`RICHARD S.J. HUNG - #197425
`rhung@mofo.com
`SHAELYN K. DAWSON - #288278
`shaelyndawson@mofo.com
`425 Market Street
`San Francisco, CA 94105
`Telephone: 415.268.7000
`Facsimile: 415.268.7522
`
`H. CHRISTOPHER HAN - #295435
`chan@mofo.com
`755 Page Mill Road
`Palo Alto, CA 94304
`Telephone: 650.813.5600
`Facsimile: 650.494.0792
`
`Attorneys for Defendants
`CORNERSHOP TECHNOLOGIES, INC.,
`CORNERSHOP TECHNOLOGIES LLC,
`and DELIVERY TECHNOLOGIES US,
`INC.
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`
`SAN JOSE DIVISION
`MAPLEBEAR INC. DBA INSTACART,
` Case No. 5:21-cv-03633-SVK
`
`JOINT MOTION FOR ENTRY OF
`Plaintiff,
`STIPULATED PERMANENT
`INJUNCTION & ORDER OF DISMISSAL
`Judge:
`Hon. Susan van Keulen
`Date Filed: July 16, 2020
`Trial Date: September 19, 2022
`
`
`v.
`CORNERSHOP TECHNOLOGIES, INC.;
`CORNERSHOP TECHNOLOGIES LLC;
`DELIVERY TECHNOLOGIES US, INC.;
`DOES 1-10,
`
`Defendants.
`
`
`
`
`
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`1
`JOINT MOTION FOR ENTRY OF STIPULATED PERMANENT INJUNCTION & ORDER OF DISMISSAL
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`Case 5:21-cv-03633-SVK Document 238 Filed 01/06/22 Page 2 of 22
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`Pursuant to Federal Rules of Civil Procedure 41(a) and 65, and Local Civil Rule 7-12,
`Plaintiff Maplebear Inc. dba Instacart (“Instacart”) and Defendants Cornershop Technologies,
`Inc., Cornershop Technologies LLC, and Delivery Technologies US, Inc. (collectively,
`“Cornershop”) (Instacart and Cornershop, collectively, “the Parties”) respectfully submit this
`joint motion for entry of a stipulated permanent injunction and an order of dismissal with
`prejudice. The Parties have agreed to settle the above-captioned case. In connection with the
`Settlement Agreement, the Parties have agreed to the entry of a Stipulated Permanent Injunction
`and Order of Dismissal, in the form attached hereto as a Proposed Order. Accordingly, the
`Parties jointly move the Court to enter the Stipulated Permanent Injunction and Order of
`Dismissal. Each Party agrees that the Court may retain jurisdiction to enforce the terms of the
`Stipulated Permanent Injunction and the Settlement Agreement. Each Party agrees to bear its
`own costs, attorneys’ fees, and expenses.
`Dated: January 6, 2022
`
`By: KEKER, VAN NEST & PETERS LLP
`
`
`
`/s/ Sharif E. Jacob
`SHARIF E. JACOB
`DAVID SILBERT
`NICHOLAS S. GOLDBERG
`SARAH SALOMON
`PUJA PARIKH
`NIALL ROBERTS
`MAILE YEATS-ROWE
`NICHOLAS GREEN
`Attorneys for Plaintiff
`MAPLEBEAR INC. DBA INSTACART
`By: MORRISON & FOERSTER LLP
`
`
`
`Dated: January 6, 2022
`
`/s/ Michael A. Jacobs
`MICHAEL A. JACOBS
`RICHARD S.J. HUNG
`SHAELYN K. DAWSON
`H. CHRISTOPHER HAN
`Attorneys for Defendants
`CORNERSHOP TECHNOLOGIES, INC.,
`CORNERSHOP TECHNOLOGIES LLC,
`and DELIVERY TECHNOLOGIES US,
`INC.
`
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`Case 5:21-cv-03633-SVK Document 238 Filed 01/06/22 Page 3 of 22
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`ATTESTATION
`Pursuant to Civil Local Rule 5-1(i)(3), I attest that all other signatories listed, and on
`whose behalf this filing is submitted, concur in the filing’s content, and have authorized the filing.
`
`Dated: January 6, 2022
`
`/s/ Sharif E. Jacob
`SHARIF E. JACOB
`
`3
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`Case 5:21-cv-03633-SVK Document 238 Filed 01/06/22 Page 4 of 22
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`[PROPOSED] ORDER ENTERING STIPULATED PERMANENT INJUNCTION &
`ORDER OF DISMISSAL
`Plaintiff Maplebear Inc. dba Instacart (“Instacart”) filed the above captioned lawsuit on
`July 16, 2020, together with a motion for a preliminary injunction. Instacart’s suit alleges that
`Defendants Cornershop Technologies Inc., Cornershop Technologies LLC, and Delivery
`Technologies US, Inc. (collectively, “Cornershop”) scraped Instacart’s Platform and
`misappropriated Instacart’s copyrighted product images and data. Instacart asserts that
`Cornershop’s conduct violated the Computer Fraud and Abuse Act (“CFAA”), the Copyright Act,
`the Digital Millennium Copyright Act, the Texas Harmful Access by a Computer Act
`(“THACA”), the Texas common law of unfair competition, and breached its contracts with
`Instacart.
`The Parties entered into a stipulated preliminary injunction on September 23, 2020 and
`have now reached an agreement to settle the remaining outstanding matters in dispute. In
`connection with their settlement agreement, the Parties have agreed to consent to the entry of a
`permanent injunction as follows:
`
`DEFINITIONS
`For the purposes of this Order, the term “scraping” shall refer to any system,
`1.
`method, process, or technique by which a computer, computer system, application programming
`interface, computer program, application, or other logical operation extracts, copies, translates,
`makes a derivative from, or otherwise records data from any third-party website or application.
`2.
`For the purposes of this Order, “affiliate” shall refer to any person or entity related
`to, associated with, contracted with, partnered with, in a joint venture with, owning, owned by,
`operated by, under common control with as of the date of this Order, under the direction of, or
`with the ability to direct or control Cornershop or any parent or subsidiary thereof, as well as any
`current and former principal, officer, director, manager, general partner, employee, agent, servant,
`vendor, parent company, or subsidiary of any such person or entity, including that person or
`entity’s advisors, consultants, contractors, attorneys, accountants, predecessors, successors,
`assigns, heirs, administrators, executors, supervisors, or representatives.
`3.
`For the purposes of this Order, (a) “platform” shall refer to a party’s owned or
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`Case 5:21-cv-03633-SVK Document 238 Filed 01/06/22 Page 5 of 22
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`operated technology platform, whether accessed by a web-based browser or phone-based
`application, that processes customer orders placed on virtual retailer storefronts, as well as the
`application through which the independent service providers with whom a party contracts using
`the platform receive those orders; and (b) “Instacart platform” shall mean any such platform that
`is visibly identified as, disclosed to Cornershop, or otherwise known by Cornershop to be owned
`or operated by Instacart or any entity that Instacart controls, is controlled by, or is under common
`control with Instacart, directly or indirectly.
`4.
`Use of the singular also includes the plural and vice-versa, even for the above
`defined terms.
`The words “or” and “and” shall be read in the conjunctive and in the disjunctive
`5.
`wherever they appear, and neither of these words shall be interpreted to limit the scope of this
`Order.
`
`ORDER
`The Court finds that entrance of this injunction is necessary to effectuate the Parties’
`Settlement Agreement and HEREBY ORDERS that Cornershop and its officers, agents,
`servants, employees, and attorneys, and other persons who are in active concert or participation
`with any of the foregoing, are hereby ENJOINED from:
`1.
`Displaying, publishing, reproducing, or distributing any copies or derivatives of
`any of Instacart’s copyrighted images, including without limitation those images identified in
`Exhibit S of the Romaniuk Declaration attached to Instacart’s Motion for Preliminary Injunction;
`2.
`Scraping, or facilitating the scraping of, any Instacart platform, or otherwise
`copying or facilitating the copying of portions of any Instacart platform, in excess of the license
`granted by the Terms of Service, in the form attached hereto as Exhibit A;
`3.
`Otherwise accessing and using any Instacart platform in excess of the license
`granted by the Terms of Service, in the form attached hereto as Exhibit A; and
`4.
`Using or displaying any original or altered computer files, data, or other
`information including but not limited to package information, file names, metadata, and catalog
`information such as pricing, product information, and product availability, originating from
`
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`Case 5:21-cv-03633-SVK Document 238 Filed 01/06/22 Page 6 of 22
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`
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`scraping by Cornershop or its affiliates or at Cornershop’s or its affiliates’ direction, at any time,
`of any Instacart platform, on any platform operated by Cornershop or its affiliates. The foregoing
`sentence shall expire as to Cornershop’s affiliates (but not as to Cornershop) after a period of
`eighteen (18) months.
`5.
`Using or displaying any original or altered Instacart copyrighted images,
`originating from scraping by Cornershop or its affiliates or at Cornershop’s or its affiliates’
`direction, at any time, of any Instacart platform, on any platform operated by Cornershop or its
`affiliates.
`For avoidance of doubt, the foregoing paragraphs shall not prohibit (a) by a natural
`6.
`person, the viewing, use of, or interaction with an Instacart platform through a browser or
`Instacart-provided mobile application; or (b) Cornershop or its affiliates from:
`(i) accessing with a computing device, or
`(ii) using (but not displaying) information originating from,
`any Instacart platform solely for purposes of platform comparison.
`IT IS FURTHER ORDERED that, for a period of three (3) years beginning with the
`date of entry of this Order, if Instacart has good cause to believe that Cornershop is not in
`compliance with the terms of this Order, Instacart may request from Cornershop or apply to the
`Court for, as set forth below, permission to have the Berkeley Research Group (“BRG”) conduct
`an audit of Cornershop’s systems, servers, and data stores supporting Cornershop service
`offerings that compete with Instacart service offerings. Instacart shall use reasonable efforts to
`inform Cornershop, in writing (via email or another method), of its intention to initiate an audit
`based on Instacart’s good-faith belief that Cornershop has failed to comply with the terms of this
`Order. Contemporaneous with Instacart’s communication of its intention to initiate an audit,
`Instacart shall provide Cornershop, in writing (via email or another method) a specific
`identification of information Instacart believes to be on Cornershop’s systems, servers, and data
`stores in violation of this Order. This identification need not be exhaustive, but shall include
`specific examples of the information founding Instacart’s good-faith belief. The forensic audit
`will consist of a combination of an on-site and in person audit as well as a remote audit. Instacart
`
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`Case 5:21-cv-03633-SVK Document 238 Filed 01/06/22 Page 7 of 22
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`and Cornershop agree to jointly schedule the audit as soon as practicable. As part of the forensic
`audit, Cornershop will make available the necessary personnel and will provide all necessary
`access to its data, systems, and servers to enable the auditor to perform an audit. For example,
`and without limitation, the forensic audit may include providing the auditor with credentials to
`access Cornershop’s AWS environment that is understood to house the data and images that
`comprise product images, file names, and/or listings on its platform. In the event the auditor
`determines that Cornershop is not in compliance with the terms of this Order, Cornershop shall
`bear all cost associated with the auditor; in the event the auditor does not make that
`determination, Instacart shall bear such cost. Both parties agree that the audit process shall be
`tailored to the severity of the suspected non-compliance.
`IT IS FURTHER ORDERED that, should Instacart assert a request to initiate an audit
`based on Instacart’s good-faith belief that Cornershop has failed to comply with this Order,
`Cornershop shall have five (5) calendar days to serve a written response informing Instacart it
`does not consent to the audit. Should Cornershop fail to serve the written response within that
`time, Cornershop must submit to the audit provided for by this Order. If Cornershop timely
`serves a written response and does not consent to the audit, the parties will thereafter meet and
`confer. In the event that they are unable to resolve the dispute, Instacart shall have fourteen (14)
`calendar days thereafter, in the absence of an extension agreed upon by the parties or entered by
`the Court, to file a motion to conduct an audit pursuant to this Order, which shall be granted upon
`a showing that it is more likely than not Cornershop has failed to comply with this Order.
`IT IS FURTHER ORDERED that any inspection by BRG pursuant to this Order shall
`be conducted pursuant to appropriate confidentiality restrictions to protect Cornershop’s
`proprietary information and that, in particular, information obtained through the audit will be used
`solely to enforce compliance with this Order and for no other purpose.
`IT IS FURTHER ORDERED THAT, before filing any Motion for an Order to Show
`Cause Why Cornershop Should Not Be Held in Contempt or any other motion arising out of this
`Injunction, Instacart shall provide Cornershop, in writing (via email or another method), notice of
`Cornershop’s violation of this Order. Cornershop shall take prompt action, and no later than
`
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`Case 5:21-cv-03633-SVK Document 238 Filed 01/06/22 Page 8 of 22
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`fourteen (14) days from Cornershop’s receipt of such written notice from Instacart, Cornershop
`shall cure the violations and provide written verification thereof. If Instacart disagrees that
`Cornershop has cured the alleged violation, Instacart shall give notice to Cornershop, and the
`parties shall meet and confer within ten (10) business days of receipt of such notice in a good
`faith attempt to resolve the dispute. If thereafter, there is no such resolution, Instacart may seek
`appropriate relief from the Court.
`The Court retains jurisdiction to enforce, modify, extend, or terminate this Order as the
`equities may require upon a proper showing.
`
`ORDER OF DISMISSAL
`IT IS FURTHER ORDERED that except as to the injunctive relief provided pursuant to
`this Order, this action is dismissed with prejudice, with each party bearing its own attorney’s fees
`and costs. The court shall retain jurisdiction to enforce this Stipulated Permanent Injunction and
`Order of Dismissal and the Settlement Agreement between the Parties.
`
`
`
`DATED: , 2022
`
`
`
`
`HON. SUSAN VAN KEULEN
`UNITED STATES MAGISTRATE JUDGE
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`Case 5:21-cv-03633-SVK Document 238 Filed 01/06/22 Page 9 of 22
`Case 5:21-cv-03633-SVK Document 238 Filed 01/06/22 Page 9 of 22
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`EXHIBIT A
`EXHIBIT A
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`

`

`12/29/21, 5:41 PM
`Skip navigation
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`Case 5:21-cv-03633-SVK Document 238 Filed 01/06/22 Page 10 of 22
`
`Terms of Service
`Last updated: February 18, 2021
`
`Thank you for using Instacart! These Terms of Service (“Terms”) govern your use of the Instacart services,
`including Instacart’s website, Instacart’s mobile applications, APIs, and any websites (or portions thereof) or
`mobile applications that are operated by Instacart (collectively, the “Services”), and are entered into by you and
`Maplebear Inc. (d/b/a Instacart), a Delaware corporation (“Instacart”). This Agreement applies to all visitors,
`users, and others who access the Services (each, hereafter, a “user”).
`
`By using the Services, you agree to be bound by these Terms and acknowledge and agree to the collection, use
`and disclosure of your personal information in accordance with Instacart’s Privacy Policy.
`
`SECTION 13 (“DISPUTES & ARBITRATION”) OF THESE TERMS (THE “ARBITRATION
`AGREEMENT”) PROVIDES THAT ANY CLAIMS THAT YOU AND INSTACART HAVE AGAINST EACH
`OTHER, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS THAT AROSE OR WERE ASSERTED
`BEFORE THE EFFECTIVE DATE OF THESE TERMS, WILL, WITH LIMITED EXCEPTIONS, BE
`SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE
`ARBITRATION AGREEMENT YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK
`RELIEF AGAINST INSTACART ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS
`MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. TO THE FULLEST
`EXTENT PERMITTED BY LAW, YOU ALSO WAIVE YOUR RIGHT TO SEEK RELIEF IN A COURT OF
`LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS. PLEASE SEE SECTION 13 FOR MORE
`INFORMATION REGARDING THIS ARBITRATION AGREEMENT, THE POSSIBLE EFFECTS OF THIS
`ARBITRATION AGREEMENT, AND HOW TO OPT OUT OF THE ARBITRATION AGREEMENT.
`
`The Services comprise a technology platform that presents you with a set of one or more retailer (each a
`“Retailer”) virtual storefronts from which you can select goods for picking and packing by one or more personal
`shoppers and delivery to your location or, if available, for you to pick up in-store. Depending on the Retailer
`from whom you purchase goods through the Services, picking and packing, and delivery services may be
`performed by third parties, which may include Retailer personnel, independent contractors, and third party
`logistics providers (collectively, “Third Party Providers”).
`
`You acknowledge that services provided by Third Party Providers are provided by third-party independent
`contractors who are not employed by Instacart. You acknowledge that Instacart does not supervise, direct, or
`control the performance of services provided by Third Party Providers to you or for your benefit.
`
`When you use the Services to place an order for goods, you authorize the purchase of those goods from the
`Retailers you select and, if you have selected delivery services, the delivery of those goods by Third Party
`Providers. Unless otherwise specified, you acknowledge and agree that Instacart and the Third Party Provider
`are collectively acting as your agents in the ordering, picking, packing, and/or delivery of goods purchased by
`
`https://www.instacart.com/terms
`
`1/13
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`

`Instacart Terms
`12/29/21, 5:41 PM
`Case 5:21-cv-03633-SVK Document 238 Filed 01/06/22 Page 11 of 22
`you and the Retailer—not the Third Party Provider and not Instacart—is the seller of the goods to you. You
`agree that your purchase is being made from the Retailer you have selected, that Retailer is the merchant of
`record, and that title to any goods passes to you when they are purchased at the applicable Retailer’s store. You
`agree that Instacart or the applicable retailer will obtain a credit card authorization for your credit card on file
`with Instacart to cover the cost of the goods you have purchased from the retailer and any separate Instacart fees,
`and your card will be charged for the goods purchased by you and any applicable fees, taxes and/or tips.
`
`Instacart may change the fees it charges for the Services, including but not limited to delivery fees, service fees,
`alcohol service fees, and heavy order fees. Your card will be temporarily authorized for an amount greater than
`the total amount of the purchase appearing in the original check out. This higher authorized amount will be
`disclosed during the purchase process and is a temporary authorization charge on your order, to deal with
`situations where your total purchase amount turns out to be higher than the original amount due to special
`requests, added items, replacement items or weight adjustments. Retailers set the prices of the goods on the
`Services, and some Retailers may set prices for goods on the Services that are different than in-store prices. You
`can view each Retailer’s pricing policies on their storefront on both the website and in the Instacart app.
`
`You also acknowledge and agree that, except as expressly provided for otherwise in these Terms or a separate
`agreement between you and Instacart, Instacart does not form any employment or agency relationship with you
`and does not hold title to any goods that you order through the Services.
`
`Unless otherwise indicated, all prices and other amounts are in the currency of the jurisdiction where the
`delivery takes place.
`
`Occasionally there may be information on the Services that contains typographical errors, inaccuracies, or
`omissions that may relate to pricing, product descriptions, promotional offers, and product availability. Instacart
`reserves the right to correct any errors, inaccuracies or omissions and to change or update information or refuse
`or cancel orders if any information on the Services is inaccurate at any time without prior notice (including after
`you have submitted your order and/or your credit card has been charged).
`1. Your Use of the Services
`
`Instacart grants you a limited, non-exclusive, non-transferable, and revocable license to use the Services for their
`intended purposes subject to your compliance with these Terms and Instacart’s policies. You may not copy,
`modify, distribute, sell, or lease any part of the Services. Unless such restriction is prohibited by law or you have
`Instacart’s written permission, you may not reverse engineer or attempt to extract the source code of the
`Services. You may only access the Services through the interfaces that Instacart provides for that purpose (for
`example, you may not “scrape” the Services through automated means or “frame” any part of the Services), and
`you may not interfere or attempt to disrupt the Services.
`
`Some parts of the Services may allow you to upload or submit content (such as text, images, video, recipes, lists,
`links, and other materials). You retain all rights in any content that you upload or submit, and are solely
`responsible for that content. You grant Instacart a non-exclusive, royalty-free, worldwide, transferable, sub-
`licenseable, perpetual license to use, store, publicly display, publicly perform, reproduce, modify, create
`derivative works from, and distribute any such content for the purposes of operating, providing, and improving
`the Services. Instacart may, in its sole discretion, remove or take down any content that you upload or submit to
`the Services for any reason, including violation of these Terms or any other policies.
`
`You may have the option of accessing the Services through downloadable software and this software may update
`itself automatically on your device. Some software, or portions of software, in the Services may be governed by
`open source licenses. In that case, Instacart will make such licenses available to you and, in the case of conflict
`between such a license and these Terms, the open source license will control but only with respect to the
`software, or portion of the software, to which it applies.
`
`https://www.instacart.com/terms
`
`2/13
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`Instacart Terms
`12/29/21, 5:41 PM
`Case 5:21-cv-03633-SVK Document 238 Filed 01/06/22 Page 12 of 22
`If you are using Instacart Services for its intended purposes on behalf of a business or other entity, you represent
`and warrant that you have the necessary authority to bind that business or entity to these Terms and that you are
`agreeing to these Terms on behalf of that business or entity.
`
`In order to use the Services, you may need to create a user account. You agree that you are responsible for all
`conduct and transactions that take place on or using your account and that you will take precautions to keep your
`password and other account information secure. You also agree that you will comply with all applicable laws
`when accessing or using the Services and you will respect those who you encounter in your use of the Services,
`including Third Party Providers and Instacart personnel, including individuals who support Instacart’s Help
`Center. Instacart reserves the right to decline orders, refuse partial or full delivery, terminate accounts, and/or
`cancel orders at any time in its sole discretion.
`
`We’re constantly modifying and improving the Services. Instacart may introduce new features, change existing
`features, or remove features from the Services at any time and without notice. If you provide Instacart with any
`feedback on or comments regarding the Services, you grant Instacart the right to use such feedback or comments
`for any purpose without restriction or payment to you.
`
`If you have any requests for order cancellations, refunds, or returns, please visit your account to initiate such
`requests or review our Help Center articles for our policies regarding the same.
`2. Instacart Communications
`
`By creating an Instacart user account, you agree to accept and receive communications from Instacart or Third
`Party Providers, including via email, text message, calls, and push notifications to the cellular telephone number
`you provided to Instacart. You understand and agree that you may receive communications generated by
`automatic telephone dialing systems and/or which will deliver prerecorded messages sent by or on behalf of
`Instacart, its affiliated companies and/or Third Party Providers, including but not limited to communications
`concerning orders placed through your account on the Services. Message and data rates may apply. If you do not
`wish to receive promotional emails, text messages, or other communications, you may opt out of such
`communications at any time in Your Account Settings. You may also opt-out of receiving text messages from
`Instacart by replying “STOP” from the mobile device receiving the messages.
`
`If you use the Services to order a prescription drug product (where available), you understand and agree that user
`inquiries must be conducted via telephone. You also understand and agree that a third party pharmacy and/or
`Instacart may send you unencrypted SMS messages, push notifications or other electronic notifications relating
`to prescription drug products that you order through the Services. There is some level of risk that information in
`such communications could be read by an unintended third party. By using the Services to order a prescription
`drug product, you explicitly disclaim any liability against Instacart, its affliated companies, and Third Party
`Providers for any harm or damage arising out of or in connection with any SMS messages, push notifications
`and/or other electronic notifications.
`3. Instacart Express
`
`Instacart Express is a membership program that waives the delivery fee and reduces certain service fees for
`scheduled deliveries on orders over $35 (the "Instacart Express Benefits") with each Retailer placed through the
`Services for a monthly or yearly subscription fee. Instacart Express Benefits may differ on certain Retailer's
`white label sites that are powered by Instacart. Generally, Instacart gift cards and/or credits cannot be used to pay
`for the Instacart Express subscription fee. Deliveries made by Third Party Providers via Instacart Express are
`subject to availability. You acknowledge that your Instacart Express membership does not entitle you to faster
`delivery times or priority time slots. Service fees, alcohol service fees, heavy order fees, special handling fees,
`taxes and/or tips may still apply. For combinations with other offers, restrictions may apply.
`
`https://www.instacart.com/terms
`
`3/13
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`Instacart Terms
`12/29/21, 5:41 PM
`UNLESS YOU CANCEL, BY DEFAULT (AND WITH PRIOR NOTICE TO THE EXTENT REQUIRED BY
`APPLICABLE LAW), YOUR INSTACART EXPRESS MEMBERSHIP WILL AUTOMATICALLY RENEW,
`AND THE APPLICABLE MEMBERSHIP FEE WILL BE AUTOMATICALLY CHARGED TO YOU AT THE
`TIME OF RENEWAL WITH AN ACTIVE CREDIT OR DEBIT CARD ON FILE IN YOUR ACCOUNT. The
`billing date will depend on the type of subscription that you choose when you sign-up for an Instacart Express
`membership (monthly or yearly) and will be charged on the billing date indicated on your “Your Account” page.
`In certain circumstances, your billing date may change. For instance, if we are unable to successfully charge
`your card for the Instacart Express membership fee on a given day (e.g., a Federal holiday or technical failures).
`Instacart Express membership fees are fully earned upon payment.
`
`Case 5:21-cv-03633-SVK Document 238 Filed 01/06/22 Page 13 of 22
`
`If your payment details change, your card provider may provide us with updated card details. We may use these
`new details or details from other cards on file in order to help prevent any interruption to your Instacart Express
`membership. If you do not want to have your card automatically updated, you can opt out of these services by
`contacting your issuing bank. If you would like to use a different payment method or if there is a change in
`payment method, please update your billing information on your “Your Account” page under the “Express”
`section. All billing information you provide to us must be truthful and accurate and you represent that you are
`authorized to use the card in the manner contemplated here. If the card you provided to us for payment is
`declined or if a payment was not successfully made by you, you remain responsible for any uncollected
`amounts. If a payment is not successfully made and you do not cancel your account, we may suspend your
`access to the Services, including without limitation your Instacart Express membership, until we have
`successfully charged a valid credit or debit card.
`
`If you do not want your membership to automatically renew, you can cancel your Instacart Express membership
`at any time using this link or on your “Your Account” page under the Express section. You may cancel your
`Instacart Express membership within the first fifteen (15) calendar days of your paid Instacart Express
`membership term and receive a refund of the Instacart Express membership fee you paid, but only if you have
`not placed any orders using your Instacart Express membership. If you cancel at any other time, you will not
`receive a refund, but you can continue to enjoy the benefits of your Instacart Express membership through the
`end of your paid membership term. Additional instructions on how to manage your Instacart Express
`membership are available in the Help Center.
`
`From time to time, Instacart offers some users trial or other promotional memberships to Instacart Express. Such
`trial or promotional memberships are subject to these Terms except as otherwise stated in the promotional offer,
`including which users are eligible for the promotional memberships. Only one trial or promotional membership
`is available per household and may not be combined with any other promotion. When the free trial or
`promotional membership period has expired, Instacart will automatically charge you the applicable Instacart
`membership fee to the credit or debit card on file with Instacart. If you cancel your Instacart Express
`membership before the free trial or promotional membership period has expired, Instacart will not charge you
`for the subsequent Instacart Express membership term. Instacart may change the monthly or annual fee charged
`for Instacart Express membership at any time, but any such fee change will not apply to current Instacart
`Express members until such time as their current memberships expire and their memberships are renewed for
`another term.
`
`We may change other terms or conditions applicable