Bungii™ Driver Agreement
***THIS CONTRACT CONTAINS A BINDING MUTUAL ARBITRATION PROVISION (INCLUDING A CLASS ACTION WAIVER). BY ACCEPTING THIS AGREEMENT YOU WAIVE YOUR RIGHT TO A JURY TRIAL AND AGREE TO BINDING ARBITRATION***
This Driver Agreement constitutes a legal agreement between you, an individual (“you,” and “your,”) and Bungii, LLC, a Kansas limited liability company (“Company” or “Bungii”, “we”).
Bungii™ is an on-demand technology services provider that pairs persons or organizations seeking delivery services with drivers who desire to provide delivery services using the Bungii Services (defined below). You acknowledge and agree that Company is a technology services provider and does not provide delivery services. In order to use the Bungii Services, you must agree to the terms and conditions that are set forth below. By accessing or using the Bungii Platform (defined below) or click “I agree”, you indicate that you have reviewed and accepted the terms and conditions of this Agreement, and acknowledge that you and Company are bound by the terms and conditions set forth herein.
IMPORTANT: PLEASE NOTE THAT TO USE THE BUNGII SERVICES, YOU MUST AGREE TO THE TERMS AND CONDITIONS SET FORTH BELOW. BY VIRTUE OF YOUR ACCEPTANCE OF THIS AGREEMENT, YOU WILL BE ACKNOWLEDGING THAT YOU HAVE READ AND UNDERSTOOD ALL OF THE TERMS OF THIS AGREEMENT (INCLUDING THE ARBITRATION PROVISION) AND HAVE TAKEN TIME TO CONSIDER THE CONSEQUENCES OF THIS IMPORTANT BUSINESS DECISION. YOU FURTHER ACKNOWLEDGE THAT BUNGII IS NOT IN THE BUSINESS OF PROVIDING TRANSPORTATION NETWORK COMPANY SERVICES, AND THAT YOU ARE STRICTLY PROHIBITED FROM TRANSPORTING PASSENGERS, RIDERS, AND/OR INDIVIDUALS EVEN IF SPECIFICALLY REQUESTED BY THE USER. TRANSPORTATION OF PASSENGERS, RIDERS, OR INDIVIDUALS IS A MATERIAL BREACH OF THE TERMS OF THIS AGREEMENT.
“Bungii Platform” means Bungii’s software, application, websites, and related support services systems, that enable delivery providers access to the Bungii Services for the purpose of seeking, receiving, and fulfilling requests for delivery services by Users, as may be updated or modified from time to time.
“Bungii Services” means Bungii’s lead generation and related services that enable drivers of delivery vehicles to seek, receive and fulfill requests for delivery services by Users seeking said services. Bungii Services include access to the Bungii Platform.
“Cargo” means the items to be delivered by you in your Vehicle in connection with the Delivery Services.
“Delivery Services” means your provision of delivery services to Users via the Bungii Platform in the Territory using your Vehicle.
“Territory” means the city or metro area in the United States in which you use the Bungii Platform for the Delivery Services.
“User” means an end user authorized by Bungii to use the Bungii platform for the purpose of obtaining Delivery Services.
“User Information” means information about a User made available to you in connection with such User’s request for and use of Delivery Services, which may include the User’s name, pick-up location, contact information and photo.
“Vehicle” means your vehicle that: (a) meets the current Company requirements for a vehicle leveraging the Bungii Services as set forth in this agreement; and (b) Company authorizes for your use for the purpose of providing Delivery Services.
2. Use of Bungii Services.
2.1 Provision of Delivery Services. If you accept a User’s request for Delivery Services, the Bungii Platform will provide you with certain User Information including the User’s first name and pickup location. It is recommended that you wait at least ten (10) minutes for a User to show up at the scheduled location. You will obtain the destination from the User or from the Bungii Platform. You acknowledge and agree that once you have accepted a User’s request for Delivery Services, Bungii’s Platform may provide certain information about you to the User, including your first name, contact information, photo and location, and your Vehicle’s make and license plate number. You shall use your best efforts to protect the safety and security of User Information. You shall not contact any Users or use any User Information for any reason other than for the purposes of fulfilling Delivery Services, and will not transfer, share, sell or otherwise disclose User Information to any third parties. As between Company and you, you acknowledge and agree that: (a) you shall be solely responsible for determining the most effective, efficient and safe manner to perform each instance of Delivery Services; and (b) except for the Bungii Services, you shall provide all necessary equipment, tools and other materials, at your own expense, necessary to perform Delivery Services.
2.2 Minimum Equipment. At a minimum, you must have the following equipment in your Vehicle for performing the Delivery Services: (a) 8’ X 10’ or larger waterproof tarp with tie down grommets; (b) four 12’ or longer ratcheting tie downs; (c) two quilts or moving blankets; and (d) various sized single bungee cords. These must all be in good working order and provided at your sole cost and expense.
2.3 Loading and Securement of Cargo; Inspection. Safety to yourself and to others is your primary concern. You should reject any item that cannot be safely placed and secured in or about your Vehicle. You are solely responsible for the proper loading and securement of the Cargo. For each and every Delivery Service you agree to: (a) properly distribute and secure the Cargo; (b) inspect the Cargo and devices to secure the load prior to beginning trip; (c) have clear visibility on all sides of the Vehicle; and (d) use extreme caution and care with customer items in the bed of Vehicle. You should note any existing damage to any item of Cargo and photograph same prior to transport. You agree that you will handle all spilled, leaked or damaged product, in compliance with all applicable laws, and with any reasonable handling procedures. You agree to reject any object that you cannot safely load and/or securely transport in the bed of Vehicle.
2.4 Prohibitions. The following actions are STRICTLY PROHIBITED by you in performance of the Delivery Services and shall not be placed in or about your Vehicle : (a) no transportation whatsoever of any passenger, person, or animal even if requested specifically by the User; (b) no transportation of articles of exceptional value such as antiques, heirlooms, extravagant furniture, fine art, jewels/jewelry, gold or other precious metals – items that are valued at over $10,000 are considered exceptional value; (c) no transportation of hazardous materials of any kind, including, but not limited to explosives,, flammable liquids, flammable solids, and/or poisonous or infectious substances, 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.
In no event may you permit any passenger in the vehicle while Delivery Services are being performed. In no event are you allowed to accept another fair while Delivery Services are being performed. Additionally, you will not tender any items for delivery to any individual performing Delivery Services who has an infant, toddler, or young child who should not be left unattended in a vehicle.
2.5 Your Relationship with Users. You acknowledge and agree that your provision of Delivery Services to Users creates a direct business relationship between you and the User. You acknowledge and agree that you are not an employee of any User, customer, or Bungii partner which you may service. You further acknowledge that Bungii is not responsible or liable for the actions or inactions of a User in relation to you, your activities or your Vehicle. You shall have the sole responsibility for any obligations or liabilities to Users or third parties that arise from your provision of Delivery Services. You acknowledge and agree that you are solely responsible for taking such precautions as may be reasonable and proper (including maintaining adequate insurance that meets the requirements of all applicable laws including motor vehicle financial responsibility laws) regarding any acts or omissions of a User or third party. You acknowledge and agree that Company may release your contact and/or insurance information to a User upon such User’s reasonable request. You acknowledge and agree that all Cargo should be transported directly to the specified destination, as directed by the applicable User, without unauthorized interruption or unauthorized stops. You agree that while you are performing Delivery Services, you will not divert or intentionally cause to divert any transported item or merchandise, unless directed to do so by the User. You must immediately notify User by by telephone, electronic communication, or through Bungii, of any accidents, thefts, or delays that might impair the safe and/or prompt delivery of any items.
2.6 Your Relationship with Company. You acknowledge and agree that Company’s provision to you of the Bungii Platform and the Bungii Services creates a business relationship between Company and you. You shall be and remain an independent contractor with respect to Bungii, and nothing contained herein shall be construed as inconsistent with that status. Company does not, and shall not be deemed to, direct or control you generally or in your performance under this Agreement specifically, including in connection with your provision of Delivery Services, your acts or omissions, your operation and maintenance of your Vehicle, or your loading of the Cargo. You retain the sole right to determine when, where, and for how long you will utilize the Bungii Platform. With the exception of any signage required by local law or permit/license requirements, Company shall have no right to require you to: (a) display Company’s name, logos or colors on your Vehicle; or (b) wear a uniform or any other clothing displaying Company’s name, logos or colors. You acknowledge and agree that you have complete discretion to provide services or otherwise engage in other business or employment activities. Company retains the right to deactivate or otherwise restrict you from accessing or using the Bungii Platform or the Bungii Services for any reason, including but not limited to:your violation or alleged violation of this Agreement, your disparagement of Company, your act or omission that causes harm to Company’s brand, reputation or business as determined by Company in its sole discretion.
2.7 Minimum Performance Standards. You agree to conduct all Delivery Services in a professional, efficient, and workmanlike manner in compliance with standard industry practices, and the following specific standards in all markets:
- a) Safeguard deliveries at all times from contamination, excessive heat, cold, or tampering.
- b) Deliveries to be completed in the specified delivery window.
- c) Service interruptions will be reported immediately to the User.
- d) Rejected items will be returned immediately following delivery to the User.
You further agree that you will act in compliance with all applicable federal, state, and local laws and regulations.
3. Location Based Services.
You acknowledge and agree that your geo-location information must be provided to the Bungii Services via your mobile device in order to provide Delivery Services. In addition, Company may monitor, track and share with third parties your geo-location information obtained by the Bungii Platform for safety and security purposes.
4.1 Ratings from User. You acknowledge and agree that: (a) after receiving Delivery Services, a User may be prompted by Bungii’s Platform to provide a rating of you and such Delivery Services and, optionally, to provide comments or feedback about you and such Delivery Services; and (b) after providing Delivery Services, you may be prompted by the Bungii Platform to provide a rating of the User and, optionally, to provide comments or feedback about the User. You shall provide your ratings and feedback in good faith. In order to continue to receive access to the Bungii Platform and the Bungii Services, you must maintain an average rating by Users that exceeds the minimum average acceptable rating established by Company for your Territory, as may be updated from time to time by Company in its sole discretion (“Minimum Average Rating”). Your average rating is intended to reflect Users’ satisfaction with your Delivery Services rather than your compliance with any of Company’s policies or recommendations. In the event your average rating falls below the Minimum Average Rating, Company will notify you and may provide you, in Company’s discretion, a limited period of time to raise your average rating above the Minimum Average Rating. If you do not increase your average rating above the Minimum Average Rating within the time period allowed (if any), Company reserves the right to deactivate your access to the Bungii Platform and the Bungii Services.
4.2 Right to Display Ratings. Company reserves the right to use, share and display your ratings and comments in any manner in connection with the business of Company without attribution to you or your approval. You acknowledge and agree that Company is a distributor (without any obligation to verify) and not publishers of your and User ratings and comments, provided that Company reserves the right to edit or remove comments in the event that such comments include obscenities or other objectionable content, include an individual’s name or other personal information, or violate any privacy laws, other applicable laws or Company’s content policies.
5. Mobile Devices.
5.1 Mobile Devices. You are responsible for the acquisition, cost and maintenance of your mobile devices as well as any necessary wireless data plan in connection with the use of the Bungii Platform. You agree to not provide, distribute or share, or enable the provision, distribution or sharing of, the Bungii Platform (or any data associated therewith) with any third party. You agree that: (a) use of the Bungii Platform on your mobile device requires an active data plan with a wireless carrier associated with your mobile device, which data plan will be provided by you at your own expense; and (b) use of the Bungii Platform on our mobile device as an interface with the Bungii Services may consume large amounts of data through the data plan. COMPANY ADVISES THAT YOUR MOBILE DEVICE ONLY BE USED UNDER A DATA PLAN WITH HIGH DATA USAGE LIMITS, AND COMPANY SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY FEES, COSTS, OR OVERAGE CHARGES ASSOCIATED WITH ANY DATA PLAN. Driver agrees that driver will comply with all laws regarding the use of mobile devices while operating the Vehicle.
6. You and Your Vehicle.
6.1 Your Requirements. You represent, warrant, and covenant that you have procured all applicable permits and licenses to operate your Vehicle. You further acknowledge and agree that at all times: (a) you shall hold and maintain (i) a valid driver’s license with the appropriate level of certification to operate your Vehicle, and (ii) all licenses, permits, approvals and authority applicable to you that are necessary to provide Delivery Services to third parties in the Territory; (b) you are at least 18 years of age; (c) you possess the appropriate and current level of training, expertise and experience to provide the Delivery Services in a professional manner with due skill, care and diligence; (d) you will maintain high standards of professionalism, service and courtesy; (e) you will not provide services when under the influence of alcohol or illegal drugs or any substance that impairs your ability to drive safely and interact with User; and (f) you are medically fit to drive and to lift at least 125 pounds without causing danger or health risk to yourself or others. You shall notify The Bungii promptly if a permit, license, or any portion thereof is suspended, canceled, terminated, withdrawn, modified or transferred, and you will cease operation of Bungii services unless and until all permits and licenses are properly reinstated. You recognize that licensing, permitting and related regulations within the various markets covered by this agreement are likely to change from time to time, and you will maintain all necessary permits and licenses required by law. You acknowledge and agree that Bungii may, but is in no way obligated to, conduct certain background and driving record checks from time to time in order to qualify to provide, and remain eligible to provide the Delivery Services. You acknowledge and agree that Company reserves the right, at any time in Company’s sole discretion, to deactivate or otherwise restrict you from accessing or using the Bungii Platform or the Bungii Services if you fail to meet the requirements set forth in this Agreement.
6.2 Vehicle Requirements. You acknowledge and agree that your Vehicle shall at all times be: (a) properly registered and licensed to operate as a transportation vehicle in the Territory; (b) suitable for performing the Delivery Services contemplated by this Agreement; (c) maintained in good operating condition, consistent with industry safety and maintenance standards for a Vehicle of its kind and any additional standards or requirements in the applicable Territory; (d) in a clean and sanitary condition and meets appearance standards deemed acceptable in the sole discretion of Company.
6.3 Documentation. To ensure your compliance with all requirements in Section 6, you must provide Company with copies of all such licenses, permits, approvals, authority, registrations and certifications upon request. Company shall, upon request, be entitled to review such licenses, permits, approvals, authority, registrations and certifications from time to time, and your failure to provide or maintain any of the foregoing shall constitute a material breach of this Agreement. Company reserves the right to independently verify your documentation from time to time in any way Company deems appropriate in its reasonable discretion.
7. Financial Terms.
7.1 Delivery Calculation and Your Payment. You are entitled to charge a fare for each completed Delivery Service provided to a User (“Fare”) , calculated based on current standards for the Territory and established by the Company that may include minimum charge, base rate, per mile charge, per minute charge, and user discounts or promo codes (“Fare Calculation”). Notwithstanding the foregoing, there may be situations where the Fare is predetermined (e.g. commercial fixed rates or minimum Fare) or estimated (e.g., loading and unloading times are estimated). You acknowledge and agree that the Fare less Service Fee is the payment you will receive in connection with the execution of Delivery Services. You acknowledge that Company may distribute user discounts (promo codes) to encourage usage of Bungii Delivery Services and that the Fare available to you will be less than the normal Fare when a promo code is utilized by a User. You are entitled to charge User for any tolls, taxes or fees incurred during the execution of Delivery Services, if applicable. You: (a) appoint Company as your limited payment collection agent solely for the purpose of accepting the Fare, tips, applicable tolls and, depending on the region and/or if requested by you, applicable taxes and fees from the User on your behalf via the payment processing functionality facilitated by the Bungii Services; and (b) agree that payment made by User to Company shall be considered the same as payment made directly by User to you.
7.2 Changes to Fare Calculation; Fare Adjustment. Company reserves the right to change the Fare Calculation at any time in Company’s discretion based upon local market factors. Your acceptance of a Delivery request with the associated driver earnings will constitute your acceptance of the Fare Calculation. Additionally, Company reserves the right to: (a) adjust the Fare for a particular instance of Delivery Services ( e.g., you took an inefficient route, you failed to properly end a particular instance of Delivery Services in the Bungii Platform, technical error in the Bungii Services, etc.); or (b) cancel the Fare for a particular instance of Delivery Services (e.g., User is charged for Delivery Services that were not provided, in the event of a User complaint, fraud, etc.). Company’s decision to reduce or cancel the Fare in any such manner shall be exercised in a reasonable manner.
7.3 Service Fee. In consideration of Company’s provisioning and payment processing of the Bungii Services for your use and benefit hereunder, you agree to pay Company a service fee on a per Delivery Services transaction basis. The Service Fee will include, at a minimum, fees for provisioning of Bungii Services (“Provisioning Charge”) and fees for processing user payments (”Payment Processing Charge”). Any tips you receive from a User whether in cash or through the Company’s payment processing will not be subject to the Company Provisioning Charge. Tips submitted through the Company’s payment processing are subject to processing fees. In the event regulations applicable to your Territory require taxes to be calculated on the Fare, Company shall calculate the Service Fee based on the Fare net of such taxes. Company reserves the right to change the Service Fee at any time in Company’s discretion based upon local market factors. Your acceptance of a Delivery request with the associated driver earnings will constitute your acceptance of the Service Fee.
7.4 Payment Practices. Company will process the User payment on your behalf through our payment processing functionality. We will use commercially reasonable efforts to remit amounts owed to you at least once a week. In the event that a User payment is unsuccessful (bank card declined), Company will make best effort in reaching the User to resolve the payment issue. Company will remit your payment as soon as the User makes a successful payment. You agree that you are only paid if Bungii is able to collect the payment from the User.
7.5 Cancellation Charges. You acknowledge and agree that Users may elect to cancel requests for Delivery Services that have been accepted by you via the Bungii Platform at any time. In the event that a User cancels an accepted request for Delivery Services, Company may charge the User a cancellation fee on your behalf. If charged, this cancellation fee shall be deemed the Fare for the cancelled Delivery Services for the purpose of remittance to you hereunder (“Cancellation Fee”).
7.6 Taxes. You acknowledge and agree that you are required to: (a) complete all tax registration obligations and calculate and remit all tax liabilities related to your provision of Delivery Services as required by applicable law; and (b) provide Company with all relevant tax information requested by the Company. You further acknowledge and agree that you are responsible for taxes on your own income arising from the performance of Delivery Services. Notwithstanding anything to the contrary in this Agreement, Company may in its reasonable discretion based on applicable tax and regulatory considerations, collect and remit taxes resulting from your provision of Delivery Services and/or provide any of the relevant tax information you have provided pursuant to the foregoing requirements in this Section directly to the applicable governmental tax authorities on your behalf or otherwise.
8. Proprietary Rights; License.
8.1 License Grant; use of Bungii Services and Bungii Platform. Subject to the terms and conditions of this Agreement, Company hereby grants you a non-exclusive, non-transferable, non-sublicensable, non-assignable license, during the term of this Agreement, to use the Bungii Services (including the Bungii Platform) solely for the purpose of providing Delivery Services to Users and tracking resulting Fares and Fees. All rights not expressly granted to you are reserved by Company.
8.2 Restrictions. You shall not, and shall not allow any other party to: (a) license, sublicense, sell, resell, transfer, assign, distribute or otherwise provide or make available to any other party the Bungii Services, or the Bungii Platform in any way; (b) modify or make derivative works based upon the Bungii Services or Bungii Platform; (c) improperly use the Bungii Services or Bungii Platform, including creating Internet “links” to any part of the Bungii Services or Bungii Platform, “framing” or “mirroring” any part of the Bungii Services or Bungii Platform on any other websites or systems, or “scraping” or otherwise improperly obtaining data from the Bungii Services or Bungii Platform; (d) reverse engineer, decompile, modify, or disassemble the Bungii Services or Bungii Platform, except as allowed under applicable law; or (e) send spam or otherwise duplicative or unsolicited messages. In addition, you shall not, and shall not allow any other party to, access or use the Bungii Services or Bungii Platform to: (i) design or develop a competitive or substantially similar product or service; (ii) copy or extract any features, functionality, or content thereof; (iii) launch or cause to be launched on or in connection with the Bungii Services an automated program or script, including web spiders, crawlers, robots, indexers, bots, viruses or worms, or any program which may make multiple server requests per second, or unduly burden or hinder the operation and/or performance of the Bungii Services; or (iv) attempt to gain unauthorized access to the Bungii Services or its related systems or networks.
8.3 Ownership. The Bungii Services and the Bungii Platform, including all intellectual property rights therein, are and shall remain (as between you and Company) the property of Company. Neither this Agreement nor your use of the Bungii Services or Bungii Platform conveys or grants to you any rights in or related to the Bungii Services or Bungii Platform, except for the limited license granted above. Other than as specifically permitted by the Company in connection with the Bungii Services, you are not permitted to use or reference in any manner Company’s names, logos, products and service names, trademarks, service marks, trade dress, copyrights or other indicia of ownership for any commercial purposes.
9.1 Each party acknowledges and agrees that in the performance of this Agreement it may have access to or may be exposed to, directly or indirectly, confidential information of the other party (“Confidential Information”). Confidential Information includes Company information related to the Bungii Services, User Information, and the transaction volume, marketing and business plans, business, financial, technical, operational and such other non-public information of each party (whether disclosed in writing or verbally) that such party designates as being proprietary or confidential or of which the other party should reasonably know that it should be treated as confidential.
9.2 Each party acknowledges and agrees that: (a) all Confidential Information shall remain the exclusive property of the disclosing party; (b) Driver will hold confidential any and all User data it receives, including any Bungii partner’s data. it shall not use Confidential Information of the other party for any purpose except in furtherance of this Agreement; (c) it shall not disclose Confidential Information of the other party to any third party, except to its employees, officers, contractors, agents and service providers (“Permitted Persons”) as necessary to perform under this Agreement, provided Permitted Persons are bound in writing to obligations of confidentiality and non-use of Confidential Information no less protective than the terms hereof; and (d) it shall return or destroy all Confidential Information of the disclosing party, upon the termination of this Agreement or at the request of the other party (subject to applicable law and, with respect to Company, its internal record-keeping requirements).
9.3 Notwithstanding the foregoing, Confidential Information shall not include any information to the extent it: (a) is or becomes part of the public domain through no act or omission on the part of the receiving party; (b) was possessed by the receiving party prior to the date of this Agreement without an obligation of confidentiality; (c) is disclosed to the receiving party by a third party having no obligation of confidentiality with respect thereto; or (d) is required to be disclosed pursuant to law, court order, subpoena or governmental authority, provided the receiving party notifies the disclosing party thereof and provides the disclosing party a reasonable opportunity to contest or limit such required disclosure.
10.2 Disclosure of Your Information. Subject to applicable law, Company may, but shall not be required to, provide to you, a User, an insurance company and/or relevant authorities and/or regulatory agencies any information (including personal information (e.g., information obtained about you through any background check)) about you or any Delivery Services provided hereunder if: (a) there is a complaint, dispute or conflict, including an accident, between you and a User; (b) it is necessary to enforce the terms of this Agreement; (c) it is required, in Company’s sole discretion, by applicable law or regulatory requirements; (d) to protect the safety of the public for any reason including the facilitation of insurance claims related to the Bungii Services; (e) to detect, prevent or otherwise address fraud, security or technical issues; (f) to prevent or stop activity which Company, in its sole discretion, may consider to be, or to pose a risk of being, an illegal, unethical, or legally actionable activity); or (g) it is required or necessary, in Company’s sole discretion, for insurance or other purposes related to your ability to qualify, or remain qualified, to use the Bungii Services. You understand that Company may retain your personal data for legal, regulatory, safety and other necessary purposes after this Agreement is terminated in accordance to Company’s data retention policy and applicable laws.
11.1 Maintain Insurance. You agree to maintain during the term of this Agreement on all Vehicles operated by you under this Agreement, automobile liability insurance that provides protection against bodily injury and property damage to third parties at levels of coverage that satisfy the minimum financial responsibility requirements for the Delivery Services you provide pursuant to this Agreement within the Territory. This coverage must also include any no-fault coverage required by law in the Territory that may not be waived by an insured. You agree to provide Company a copy of the insurance policy, policy declarations, proof of insurance identification card and proof of premium payment for the insurance policy required in this Section 11 upon request. Furthermore, you must provide Company with written notice of cancellation of any insurance policy required by Company. Company shall have no right to control your selection or maintenance of your policy. You must be a named insured or individually rated driver, for which a premium is charged, on the insurance policy required in this Section 11 at all times.
11.2 Notification of Accidents. You will promptly notify Bungii of all accidents, injuries, Cargo loss and/or damage or similar incidents and/or occurrences, no matter how minor, involving You and/or your Vehicle in connection with your providing of the Delivery Services. You agree this notification shall take place as soon as you are safely able to communicate with Bungii.
11.3 Maintain Workers’ Comp Insurance. You agree to maintain during the term of this Agreement workers’ compensation insurance as required by all applicable laws in the Territory. If permitted by applicable law, you may choose to insure yourself against industrial injuries by maintaining occupational accident insurance in place of workers’ compensation insurance. Furthermore, if permitted by applicable law, you may choose not to insure yourself against industrial injuries at all, but do so at your own risk. You expressly acknowledge that Bungii is not responsible for maintaining workers’ compensation insurance for you as an independent contractor.
11.4 Your Responsibility for Appropriate Insurance. You understand and acknowledge that your personal automobile insurance policy may not afford liability, comprehensive, collision, medical payments, personal injury protection, uninsured motorist, underinsured motorist, or other coverage for the Delivery Services you provide pursuant to this Agreement. You should contact your insurance provider to ensure that you have adequate coverage for your Vehicle performing the Delivery Services as an independent contractor. If you have any questions or concerns about the scope or applicability of your own insurance coverage, it is your responsibility, not that of Company, to resolve them with your insurer(s).
12. Representations and Warranties; Disclaimers.
12.1 By You. You hereby represent and warrant that: (a) you have full power and authority to enter into this Agreement and perform your obligations hereunder; and (b) you will comply with all applicable laws in your performance of this Agreement, including holding and complying with all permits, licenses, registrations and other governmental authorizations necessary to provide Delivery Services using the Vehicle pursuant to this Agreement.
12.2 Disclaimer of Warranties. COMPANY PROVIDES, AND YOU ACCEPT, THE BUNGII SERVICES, AND THE BUNGII PLATFORM ON AN “AS IS” AND “AS AVAILABLE” BASIS. COMPANY DOES NOT REPRESENT, WARRANT OR GUARANTEE THAT YOUR ACCESS TO OR USE OF THE BUNGII SERVICES OR THE BUNGII PLATFORM: (A) WILL BE UNINTERRUPTED OR ERROR FREE; OR (B) WILL RESULT IN ANY REQUESTS FOR DELIVERY SERVICES. THE COMPANY MAKES NO REPRESENTATIONS, WARRANTIES OR GUARANTEES AS TO THE ACTIONS OR INACTIONS OF THE USERS WHO MAY REQUEST OR RECEIVE DELIVERY SERVICES FROM YOU, AND COMPANY DOES NOT SCREEN OR OTHERWISE EVALUATE USERS. BY USING THE BUNGII SERVICES AND BUNGII PLATFORM, YOU ACKNOWLEDGE AND AGREE THAT YOU MAY BE INTRODUCED TO A THIRD PARTY THAT MAY POSE HARM OR RISK TO YOU OR OTHER THIRD PARTIES. YOU ARE ADVISED TO TAKE REASONABLE PRECAUTIONS WITH RESPECT TO INTERACTIONS WITH THIRD PARTIES ENCOUNTERED IN CONNECTION WITH THE USE OF THE BUNGII SERVICES OR BUNGII PLATFORM. NOTWITHSTANDING COMPANY’S APPOINTMENT AS THE LIMITED PAYMENT COLLECTION AGENT OF YOU FOR THE PURPOSE OF ACCEPTING PAYMENT FROM USERS ON YOUR BEHALF AS SET FORTH IN SECTION 7 ABOVE, COMPANY EXPRESSLY DISCLAIMS ALL LIABILITY FOR ANY ACT OR OMISSION OF YOU, ANY USER OR OTHER THIRD PARTY.
12.3 No Service Guarantee. Company does not guarantee the availability or uptime of the bungii services or bungii platform. You acknowledge and agree that the bungii services or bungii platform may be unavailable at any time and for any reason (e.g., due to scheduled maintenance or network failure). Further, the bungii services or bungii platform may be subject to limitations, delays, and other problems inherent in the use of the internet and electronic communications, and company is not responsible for any delays, delivery failures, or other damages, liabilities or losses resulting from such problems.
To the extent permitted by applicable Law, you shall indemnify, defend (at Company’s option) and hold harmless Company, its affiliates, its officers, directors, employees, agents, successors and assigns from and against any and all liabilities, expenses (including attorney’s fees), damages, penalties, fines, social security contributions and taxes arising out of or related to: (a) your breach of your representations, warranties or obligations under this Agreement; or (b) a claim by a third party (including Users, regulators and governmental authorities) directly or indirectly related to your provision of Delivery Services or use of the Bungii Services.
14. Limits of Liability.
COMPANY SHALL NOT BE LIABLE TO YOU UNDER OR RELATED TO THIS AGREEMENT FOR ANY OF THE FOLLOWING, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES: (i) ANY INCIDENTAL, PUNITIVE, SPECIAL, EXEMPLARY, CONSEQUENTIAL, OR OTHER INDIRECT DAMAGES OF ANY TYPE OR KIND; OR (ii) YOUR OR ANY THIRD PARTY’S PROPERTY DAMAGE, OR LOSS OR INACCURACY OF DATA, OR LOSS OF BUSINESS, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE. EXCEPT FOR COMPANY’S OBLIGATIONS TO PAY AMOUNTS DUE TO YOU PURSUANT TO SECTION 7 ABOVE, BUT SUBJECT TO ANY LIMITATIONS OR OTHER PROVISIONS CONTAINED IN THIS AGREEMENT WHICH ARE APPLICABLE THERETO, IN NO EVENT SHALL THE LIABILITY OF COMPANY UNDER THIS AGREEMENT EXCEED THE AMOUNT OF SERVICE FEES ACTUALLY PAID TO OR DUE TO COMPANY HEREUNDER IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.
15. Term and Termination.
15.1 Term; Termination. This Agreement shall commence on the date accepted by you and shall continue until terminated as set forth herein. Either party may terminate this Agreement: (a) without cause at any time upon seven (7) days prior written notice to the other party; (b) immediately, without notice, for the other party’s material breach of this Agreement; or (c) immediately, without notice, in the event of the insolvency or bankruptcy of the other party, or upon the other party’s filing or submission of request for suspension of payment (or similar action or event) against the terminating party. In addition, Company may terminate this Agreement immediately, without notice, with respect to you in the event you no longer qualify, under applicable law or the standards and policies of Company, to provide Delivery Services or to operate the Vehicle, or as otherwise set forth in this Agreement.
15.2 Effect of Termination. Upon termination of this Agreement, you shall immediately delete and fully remove the Bungii Platform from any of your mobile devices. Outstanding payment obligations and Sections 1, 2.5, 7.6, 8-14, and 16-19 shall survive the termination of this Agreement.
16. Relationship of the Parties.
16.1 Independent Contractor. Except as otherwise expressly provided herein with respect to Company acting as the limited payment collection agent solely for the purpose of collecting payment from Users on your behalf, the relationship between the parties under this Agreement is solely that of independent contracting parties. The parties expressly agree that: (a) this Agreement is not an employment agreement, nor does it create an employment relationship, between Company and you; and (b) no joint venture, partnership, or agency relationship exists between Company and you.
16.2 Not an Employee. You have no authority to bind Company and you undertake not to hold yourself out as an employee, agent or authorized representative of Company. Where, by implication of mandatory law or otherwise, you may be deemed an agent or representative of Company, you undertake and agree to indemnify, defend (at Company’s option) and hold Company harmless from and against any claims by any person or entity based on such implied agency or representative relationship.
17. 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 18 below. SUBJECT TO SECTION 18 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.
18. Dispute Resolution; Arbitration.
18.1 Attempt to Resolve. In the event of any dispute arising out of or relating to this Agreement or the transactions contemplated (a “Dispute”), both you and Company shall attempt in good faith promptly to resolve such dispute. Any party may give the other written notice that a dispute exists (a “Notice of Dispute”). The Notice of Dispute shall include a statement of such disputing party’s position. Within fifteen (15) days of the delivery of the Notice of Dispute, the parties shall meet at a mutually acceptable time and place in Johnson County, Kansas, and thereafter as long as they reasonably deem necessary, to attempt to resolve the dispute. All documents and other information or data on which each party relies concerning the dispute shall be furnished or made available on reasonable terms to the other party at or before the first meeting of the parties’ representatives as provided by this paragraph. The meeting described in this paragraph shall be a condition precedent to the commencement of any arbitration proceeding or litigation by either party, provided that this provision shall not apply to any action that (i) seeks injunctive relief or (ii) must be commenced or filed (or not be dismissed) to avoid prejudicing a party’s rights.
18.2 Arbitration. Any dispute if not resolved as provided in Section 18.1, shall be settled by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association in Johnson County, Kansas before a single arbitrator. The arbitration will be commenced by the claimant filing a demand for arbitration with the administrator of AAA and serving the demand on the opposing Party. Within thirty (30) calendar days of the date the demand for arbitration is filed, the Parties will select an arbitrator by following the AAA Commercial Arbitration Rules’ appointment procedures. Except as may be required by Law, neither Party nor the arbitrator may disclose the existence, content, or results of any arbitration under this agreement without the prior written consent of both parties.
18.3 Arbitration Binding. The arbitration hearing shall be held in Johnson County, Kansas. The burdens of proof will be as they would be if the dispute were litigated in a judicial proceeding. Unless the parties otherwise agree, the arbitration hearing shall be held not more than sixty (60) days after the appointment of the arbitrator. Within fifteen (15) days following the arbitration hearing, the arbitrator will render a written reasoned opinion setting forth the basis and reasons for any decision reached and will deliver such documents to each party along with a signed copy of the award. The award rendered by the arbitrator shall be final and binding on the parties and may be entered in any court having jurisdiction thereof, subject to the court’s authority to modify or review the award as provided in the Federal Arbitration Act, 9 U.S.C. §§1 et. seq.
18.4 Fees. The fees and expenses of the arbitration incurred in resolving the dispute shall be borne equally by the parties. Notwithstanding the foregoing, in the event Bungii prevails in the arbitration, Bungii will be entitled to an award of attorneys’ fees, expert witness fees and all costs of the arbitration (including the fees and expenses of the arbitrator), such fees, costs and expenses to be paid by the non-prevailing party. The arbitrator will be required to make an award of such fees, costs and expenses to Bungii. Nothing in this section shall prevent a party from seeking injunctive relief from a court in any case where such relief is available. Consistent with Section 14 in this Agreement, in no event shall the liability of the company exceed the amount of service fees actually paid or due to the company in the six (6) month period immediately preceding the event giving rise to such claim.
18.5 Arbitration is on an Individual Basis Only; Class Action Waiver. THE PARTIES AGREE TO ARBITRATE SOLELY ON AN INDIVIDUAL BASIS, AND THAT THIS AGREEMENT DOES NOT PERMIT CLASS ARBITRATION OR ANY CLAIMS BROUGHT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ARBITRATION PROCEEDING. THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING. NOTWITHSTANDING THE ARBITRATOR’S POWER TO RULE ON HIS OR HER OWN JURISDICTION AND THE VALIDITY OR ENFORCEABILITY OF THE AGREEMENT TO ARBITRATE, THE ARBITRATOR HAS NO POWER TO RULE ON THE VALIDITY OR ENFORCEABILITY OF THE AGREEMENT TO ARBITRATE SOLELY ON AN INDIVIDUAL BASIS. IN THE EVENT THE PROHIBITION ON CLASS ARBITRATION IS DEEMED INVALID OR UNENFORCEABLE, THE REMAINING PORTIONS OF THIS SECTION WILL REMAIN IN FORCE.
The parties further agree that if for any reason a claim does not proceed in arbitration, this Class Action Waiver shall remain in effect, and a court may not preside over any action joining, coordinating, or consolidating the claims of multiple individuals against Bungii in a single proceeding, except that this Class Action Waiver shall not prevent you or Bungii from participating in a classwide, collective, and/or representative settlement of claims. If there is a final judicial determination that any portion of this Class Action Waiver is unenforceable or unlawful for any reason, (i) any class, collective, coordinated, consolidated, and/or representative claims subject to the unenforceable or unlawful portion(s) shall proceed in a court of competent jurisdiction; (ii) the portion of the Class Action Waiver that is enforceable shall be enforced in arbitration; (iii) the unenforceable or unlawful portion(s) shall be severed from this Arbitration Agreement; and (iv) severance of the unenforceable or unlawful portion(s) shall have no impact whatsoever on the enforceability, applicability, or validity of the Arbitration Agreement or the arbitrability of any remaining claims asserted by you or Bungii.
19. Miscellaneous Terms.
19.1 Modification. In the event Company modifies the terms and conditions of this Agreement at any time, such modifications shall be binding on you only upon your acceptance of the modified Agreement. You hereby acknowledge and agree that, by using the Bungii Services or using the Bungii Platform, you are bound by any future amendments and additions to information referenced at hyperlinks herein, or documents incorporated herein, including with respect to Fare Calculations. Continued use of the Bungii Services or Bungii Platform after any such changes shall constitute your consent to such changes.
19.2 Supplemental Terms. Supplemental terms may apply to your use of the Bungii Services, such as use policies or terms related to certain features and functionality, which may be modified from time to time (“Supplemental Terms”). You may be presented with certain Supplemental Terms from time to time. Supplemental Terms are in addition to, and shall be deemed a part of, this Agreement. Supplemental Terms shall prevail over this Agreement in the event of a conflict.
19.3 Severability. If any provision of this Agreement is or becomes invalid or non-binding. the parties shall remain bound by all other provisions hereof. In that event, the parties shall replace the invalid or non-binding provision with provisions that are valid and binding and that have, to the greatest extent possible, a similar effect as the invalid or non-binding provision, given the contents and purpose of this Agreement.
19.4 Assignment. Neither party shall assign or transfer this Agreement or any of its rights or obligations hereunder, in whole or in part, without the prior written consent of the other party; provided that Company may assign or transfer this Agreement or any or all of its rights or obligations under this Agreement from time to time without consent: (a) to an affiliate; or (b) to an acquirer of all or substantially all of Company’s business, equity or assets.
19.5 Entire Agreement. This Agreement, including all Supplemental Terms, constitutes the entire agreement and understanding of the parties with respect to its subject matter and replaces and supersedes all prior or contemporaneous agreements or undertakings regarding such subject matter. In this Agreement, the words “including” and “include” mean “including, but not limited to.” The recitals form a part of this Agreement.
19.6 No Third Party Beneficiaries. There are no third party beneficiaries to this Agreement. Nothing contained in this Agreement is intended to or shall be interpreted to create any third-party beneficiary claims.
19.7 Notices. Any notice delivered by Company to you under this Agreement will be delivered by email to the email address associated with your account or by posting on the portal available to you on the Bungii Services. Any notice delivered by you to Company under this Agreement will be delivered by e-mailing Company at email@example.com. Additional Territory-specific notices may be required from time to time.