Bungii™ USER AGREEMENT
Update: March 01, 2018
1. Contractual Relationship.
Bungii is an on demand lead generation service that enable users to connect with drivers of pickup trucks to seek, receive and fulfill on-demand requests for delivery services (the “Services”). Your access and use of the Services constitutes your agreement to be bound by these Terms, which establishes a contractual relationship between you and Bungii. If you do not agree to these Terms, you may not access or use the Services. Bungii 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.
Bungii may amend the Terms related to the Services from time to time. Amendments will be effective upon Bungii’s posting of such updated Terms at this location. Your continued access or use of the Services after such posting constitutes your consent to be bound by the Terms, as amended.
2. The Services.
The Services constitute a technology platform that enables users of Bungii’s mobile applications or websites provided as part of the Services (each, an “Application”) to arrange and schedule delivery services (“Delivery Services”) with Third-Party delivery providers of such services (each a “Third-Party Delivery Providers”). Unless otherwise agreed by Bungii in a separate written agreement with you, the Services are made available solely for your personal, non-commercial use. YOU ACKNOWLEDGE THAT BUNGII DOES NOT PROVIDE TRANSPORTATION OR LOGISTICS SERVICES OR FUNCTION AS A TRANSPORTATION CARRIER.
2.1 Prohibitions. Only authorized cargo (“Authorized Cargo”) shall be delivered by the Third-Party Delivery Providers, the following actions are strictly prohibited in connection with the Delivery Services: (a) there shall be no transportation whatsoever of any person or animal in the Third Party Delivery Provider’s vehicle; (b) no transportation of articles of exceptional value such as antiques, heirlooms, extravagant furniture, fine art, jewels/jewelry, gold or other precious metals - generally items that are valued at over $2,500 are considered exceptional value; (c) there shall be no transportation of hazardous materials of any kind, including, but not limited to explosives, gases, flammable liquids, flammable solids, and/or poisonous or infectious substances, pool chemicals, paints and solvents, or anything designated by the Department of Transportation as hazardous materials; (d) no transportation of firearms, ammunition or other explosive materials; and (e) no transportation of goods for which you have reason to believe are illegal or stolen.
2.2 License. Subject to your compliance with these Terms, Bungii grants you a limited, non-exclusive, non-sublicensable, revocable, non-transferable license to: (i) access and use the Application 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 use. Any rights not expressly granted herein are reserved by Bungii and Bungii’s licensors.
2.3 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, distribute or license, or otherwise exploit the Application except as expressly permitted by Bungii; (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; or (v) attempt to gain unauthorized access to or impair any aspect of the Services or its related systems or networks.
2.4 Ownership. The Services and all rights therein are and shall remain Bungii’s property. Neither these Terms nor your use of the Services convey or grant to you any rights: (i) in or related to the Services except for the limited license granted above; or (ii) to use or reference in any manner Bungii’s company names, logos, product and service names, trademarks or services marks or those of Bungii’s licensors.
3. Your Use of the Services.
3.1. User Accounts and Conduct. In order to use the Services, you must be at least 18 years of age. As part of requesting Delivery Services you are required to submit to Bungii certain personal information, such as your name, address, mobile phone number and age. You agree to comply with all applicable laws when using the Services, and you may only use the Services for lawful purposes (e.g., no transport of unlawful or hazardous materials).
3.2. User Provided Content. Bungii may, in Bungii’s sole discretion, permit you from time to time to submit, upload, publish or otherwise make available to Bungii through the Services textual, audio, and/or visual content and information, including commentary and feedback related to the Services as well as the Third Party Delivery Provider, initiation of support requests, 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 Bungii, you grant Bungii a worldwide, perpetual, irrevocable, transferable, royalty-free license, with the right to 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 Bungii’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 agree to not provide User Content that is defamatory, libelous, hateful, violent, obscene, pornographic, unlawful, or otherwise offensive, as determined by Bungii in its sole discretion, whether or not such material may be protected by law. Bungii may, but shall not be obligated to, review, monitor, or remove User Content, at Bungii’s sole discretion and at any time and for any reason, without notice to you.
3.3. 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 a wireless-enabled 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. Bungii 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.
4. Delivery Calculation: Payment.
4.1. Delivery Calculation and Your Payment. You will be charged a fee for each completed Delivery Service provided to you by a Third Party Delivery Provider (“Charge”), calculated based upon a per mile charge of $1.00/mile plus a per minute charge of $1.00/minute, plus any applicable tolls and taxes, less any Bungii promo codes available to you. There is minimum Charge of $30.00 even after any promo code has been deducted from the Charge. Bungii will facilitate your payment of the applicable Charges on behalf of the Third Party Delivery Provider, as such Third Party Delivery Provider’s limited payment collection agent. Payment of the Charges in such manner shall be considered the same as payment made directly by you to the Third Party Delivery Provider. Charges paid by you are final and non-refundable, unless otherwise determined by Bungii.
You may elect to cancel your request for services or goods from a Third Party Delivery Provider at any time prior to such Third Party Delivery Provider’s arrival, in which case you may be charged a cancellation fee.
Bungii does not designate any portion of your Charges as a tip or gratuity to the Third Party Delivery Provider. Gratuities are voluntary. After you have received services or goods obtained through the Service, you will have the opportunity to rate your experience and leave additional feedback about your Third Party Delivery Provider.
5. Risk and Insurance.
Each Third Party Delivery Provider is required to (i) own and/or lease its pickup truck (“Vehicle”); (ii) maintain all licenses, permits and authorizations to provide the Delivery Services; and (iii) maintain automobile liability insurance to satisfy the minimum requirements necessary to operate a private passenger vehicle on the roads in the territory where the Third Party Delivery Provider provides Delivery Services.
You are required to notify the Third Party Delivery Provider of any damage to the Authorized Cargo prior to loading. Any Authorized Cargo that is damaged due to the negligence of the Third Party Service Provider while in transit during a Delivery Service may be reported to Bungii for compensation. Bungii will evaluate the damage and in its sole discretion facilitate or compensate for the repair or replacement of damaged items up to a maximum of $2,500 per Delivery Service.
Any claims for damage must be made as soon as possible, but in no event later than 48 hours after the Delivery Services. Claims are to be emailed to firstname.lastname@example.org.
6. Disclaimers; Limitation of Liability; Indemnity.
6.1. Disclaimer. THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” BUNGII DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, NOT EXPRESSLY SET OUT IN THESE TERMS, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN ADDITION, BUNGII MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE REGARDING THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, OR AVAILABILITY OF THE SERVICES OR THE DELIVERY SERVICES, OR THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. BUNGII DOES NOT GUARANTEE THE QUALITY, SUITABILITY, SAFETY OR ABILITY OF THIRD PARTY DELIVERY PROVIDERS.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE THAT NEITHER BUNGII NOR ITS REFERRAL PARTNERS IS RESPONSIBLE FOR THE FITNESS OR CONDUCT OF ANY THIRD PARTY DELIVERY PROVIDER OR FOR ANY SERVICES PROVIDED BY ANY THIRD PARTY DELIVERY PROVIDERS. NEITHER BUNGII NOR ITS REFERRAL PARTNERS WILL BE LIABLE FOR ANY CLAIM, INJURY OR DAMAGE ARISING IN CONNECTION WITH THE ACTS OR OMISSIONS OF ANY THIRD PARTY DELIVERY PROVIDER.
If you have a dispute with one or more Third Party Delivery Providers, you agree to release Bungii (including Bungii’s referral partners, and each of their respective officers, directors, employees, agents) from any claims, demands and damages of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected to such disputes.
6.2. Limitation of Liability. BUNGII (INCLUDING ITS REFERRAL PARTNERS) SHALL NOT BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOST DATA, OR PERSONAL INJURY IN CONNECTION WITH, OR OTHERWISE RESULTING FROM ANY USE OF THE SERVICES, EVEN IF BUNGII HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BUNGII (INCLUDING ITS REFERRAL PARTNERS) SHALL NOT BE LIABLE FOR ANY DAMAGES, LIABILITY OR LOSSES ARISING OUT OF: (i) YOUR USE OF OR RELIANCE ON THE SERVICES OR YOUR INABILITY TO ACCESS OR USE THE SERVICES; OR (ii) ANY TRANSACTION OR RELATIONSHIP BETWEEN YOU AND ANY THIRD PARTY DELIVERY PROVIDER, EVEN IF BUNGII HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BUNGII (INCLUDING ITS REFERRAL PARTNERS) SHALL NOT BE LIABLE FOR DELAY OR FAILURE IN PERFORMANCE RESULTING FROM CAUSES BEYOND BUNGII’S REASONABLE CONTROL. IN NO EVENT SHALL BUNGII’S OR ITS REFERRAL PARTNER’S TOTAL LIABILITY TO YOU IN CONNECTION WITH THE SERVICES FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION EXCEED FIVE HUNDRED U.S. DOLLARS (US $500).
BUNGII’S SERVICES MAY BE USED BY YOU TO REQUEST AND SCHEDULE DELIVERY SERVICES WITH THIRD PARTY DELIVERY PROVIDERS, BUT YOU AGREE THAT BUNGII HAS NO RESPONSIBILITY OR LIABILITY TO YOU RELATED TO ANY DELIVERY SERVICES PROVIDED TO YOU BY THIRD PARTY DELIVERY PROVIDERS OTHER THAN AS EXPRESSLY SET FORTH IN THESE TERMS.
THE LIMITATIONS AND DISCLAIMER IN THIS SECTION 6 DO NOT PURPORT TO LIMIT LIABILITY OR ALTER YOUR RIGHTS AS A CONSUMER THAT CANNOT BE EXCLUDED UNDER APPLICABLE LAW.
6.3. Indemnity. You agree to indemnify and hold Bungii and its officers, directors, employees, agents, and referral partners harmless from any and all claims, demands, losses, liabilities, and expenses (including attorneys’ fees), arising out of or in connection with: (i) your use of the Services or services or goods obtained through your use of the Services; (ii) your breach or violation of any of these Terms; (iii) Bungii’s use of your User Content; or (iv) your violation of the rights of any Third-Party, including Third Party Delivery Providers.
7. Governing Law; Venue and Jurisdiction; Waiver of Jury Trial.
THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF KANSAS, without giving effect to principles of conflicts of Law that would result in the application of the Laws of any other jurisdiction; provided, however, that the Federal Arbitration Act, 9 U.S.C. §§ 1 et. seq. shall govern all matters of arbitration law and arbitration procedure in connection with any arbitration conducted pursuant to sECTION 8 below. SUBJECT TO SECTION 8 HEREOF, EACH PARTY CONSENTS AND SUBMITS TO THE EXCLUSIVE JURISDICTION OF COMPETENT STATE AND FEDERAL COURTS IN THE STATE OF KANSAS FOR ANY LITIGATION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, AND TO THE VENUE OF SUCH LITIGATION OR PROCEEDING IN JOHNSON COUNTY, KANSAS.
8. Dispute Resolution.
8.1. Arbitration. You agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services (collectively, "Disputes") will be settled by binding arbitration between you and Bungii, except that each party retains the right to bring an individual action in small claims court and the right to seek 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. You acknowledge and agree that you and Bungii are each waiving the right to a trial by jury or to participate as a plaintiff or class in any purported class action or representative proceeding. Further, unless both you and Bungii otherwise agree in writing, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this "Dispute Resolution" section will be deemed void. Except as provided in the preceding sentence, this "Dispute Resolution" section will survive any termination of these Terms.
8.2. Arbitration Rules and Governing Law. The arbitration will be administered by the American Arbitration Association ("AAA") in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the "AAA Rules") then in effect, except as modified by this "Dispute Resolution" section. (The AAA Rules are available online or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section.
8.3. Arbitration Process. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of Kansas and will be selected by the parties from the AAA's roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
8.4. Arbitration Location and Procedure. Unless you and Bungii otherwise agree, the arbitration will be conducted in Johnson County, Kansas. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and Bungii 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.
8.5. Arbitrator's Decision. The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator's decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator's award damages must be consistent with the terms of the "Limitation of Liability" section above as to the types and the amounts of damages for which a party may be held liable. 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. If you prevail in arbitration you will be entitled to an award of attorney’s fees and expenses, to the extent provided under applicable law.
8.6. Fees. Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules.
9. Other Provisions.
9.1. Notice. Bungii may give notice by means of a general notice on the Services, electronic mail to your email address in your Account, or by written communication sent by first class mail or pre-paid post to your address in your Account. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email).
9.2. General. You may not assign these Terms without Bungii’s prior written approval. Bungii may assign these Terms without your consent to: (i) a subsidiary or affiliate; (ii) an acquirer of Bungii’s equity, business or assets; or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. No joint venture, partnership, employment, or agency relationship exists between you, Bungii or any Third Party Delivery Provider as a result of this Agreement or use of the Services. If any provision of these Terms is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced to the fullest extent under law. Bungii’s failure to enforce any right or provision in these Terms shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Bungii in writing.