JUMP STARTER SERVICES AGREEMENT
(Last updated: February 8, 2019)
This JUMP Starter Services Agreement ('Agreement') constitutes a legal agreement between you, an individual ('you') and Social Bicycles, LLC d/b/a JUMP ('Company'). You desire to enter into this Agreement to provide recharging and redistributing services to the Company. If you entered into an agreement with an Affiliate of Company, including but not limited to, Rasier, LLC, Rasier-CA, LLC, Portier, LLC, Uber Technologies Inc. or Uber USA, LLC, to, for example, or use its corresponding services, that contractual engagement is separate and independent of this Agreement and is subject to separate terms with the applicable Company Affiliate.
In order to provide JUMP Starter Services and use the JUMP Starter App, you must agree to the terms and conditions that are set forth below. Upon your execution (electronic or otherwise) of this Agreement, you and Company shall be bound by the terms and conditions set forth herein. By clicking on 'Accept' or a similar button, you expressly represent that: (1) you have read, understand and agree to be bound by the terms and conditions of this agreement; (2) you are of legal age to form a binding contract with Company; and, (3) you have the authority to enter into the agreement. Company reserves the right to deprecate, change, end, or pause, in whole or in part, the JUMP Starter App as well as any JUMP Starter Services.
IMPORTANT: PLEASE NOTE THAT TO USE THE JUMP STARTER APP, YOU MUST AGREE TO THE TERMS AND CONDITIONS SET FORTH BELOW. PLEASE REVIEW THE ARBITRATION PROVISION SET FORTH BELOW IN SECTION 14.1 CAREFULLY, AS IT WILL REQUIRE YOU TO RESOLVE DISPUTES WITH THE COMPANY ON AN INDIVIDUAL BASIS, THROUGH FINAL AND BINDING ARBITRATION. BY VIRTUE OF YOUR EXECUTION OF THIS AGREEMENT, YOU WILL BE ACKNOWLEDGING THAT YOU HAVE READ AND UNDERSTOOD ALL OF THE TERMS OF THIS AGREEMENT (INCLUDING THE ARBITRATION PROVISION IN SECTION 14) AND FULLY CONSIDERED THE CONSEQUENCES OF THIS IMPORTANT DECISION.
Additional terms that apply to your provision of JUMP Starter Services may be rolled out from time to time. Any notice delivered by Company to you under this Agreement will be delivered by email to the email address associated with your account, by posting on the portal available to you, or via the JUMP Starter App. Your provision of the JUMP Starter Services or continued use of the JUMP Starter App, after such notice has been given constitutes your acceptance of those additional terms or changes.
The Company offers a service comprised of an automated self-serve rental system for Light Electric Vehicles ('LEVs'), as well as all related equipment, personnel and information. The Company enables independent contractors (referred to herein and for purposes of this contractual engagement as 'JUMP Starters') to provide recharging and redistributing services for JUMP-branded LEVs using the JUMP Starter App (terms defined below).
1.1 'Addendum' means an addendum to this Agreement setting forth additional Territory-specific and/or service-specific terms, as made available and as updated by Company from time to time.
1.2 'Affiliate' means an entity that, directly or indirectly, controls, is under the control of, or is under common control with a party, where control means having more than fifty percent (50%) of the voting stock or other ownership interest or the majority of the voting rights of such entity.
1.3 'Company Data' means all data related to the access and use of the JUMP Starter App hereunder, including all data related to the provision of JUMP Starter Services via the JUMP Starter App and your Credentials.
1.4 'Confidential Information' has the meaning set forth in Section 6.1.
1.5 'Credentials' means the authentication or login information that enables you to use or access the JUMP Starter App.
1.6 'JUMP Names, Marks, or Works' means Company's, its Affiliates', or their respective licensors' company names, logos, products or service names, trademarks, service marks, trade dress, other indicia of ownership, or copyrights.
1.7 'JUMP Starter Payment' has the meaning set forth in Section 4.1.
1.8 'JUMP Starter Services' means recharging and rebalancing services provided to the Company, from time to time, in the Territory using the JUMP Starter App via a Transportation Method.
1.9 'JUMP Starter App' means the mobile application provided by Company that enables JUMP Starters to view LEVs eligible for JUMP Starter Services, and all related intellectual property rights.
1.10 'LEV' stands for Light Electrical Vehicle(s) and includes JUMP-branded bikes and scooters.
1.11 'Payment Terms and Conditions' means the terms and conditions located in the JUMP Starter App that need to be met in order to receive the full payout amount displayed in the JUMP Starter App.
1.12 'Territory' means the city or metro area(s) in the United States in which you are enabled by the JUMP Starter App to receive requests for JUMP Starter Services.
1.13 'Transportation Method' means the mode of transportation that will be used to carry out JUMP Starter Services (e.g., if JUMP Starter Services will be provisioned using a motor vehicle, then 'Transportation Method' shall mean a motor vehicle).
1.14 'Uber' means Uber Technologies, Inc. ('UTI'), and all Affiliates, including but not limited to, Rasier, LLC, Rasier-CA, LLC, Portier, LLC, Uber Technologies Inc. or Uber USA, LLC.
1.15 'User' means an end user (an individual or an entity) authorized by Company to ride a LEV or use any JUMP technology platform for the purpose of requesting LEVs.
1.16 'Your Device' means a mobile device owned or controlled by you: (a) that meets the then-current JUMP Starter App specifications for mobile devices as set forth at https://www.uber.com/en-ZA/drive/resources/approved-devices/ and, (b) on which the JUMP Starter App has been installed as authorized by Company solely for the purpose of providing JUMP Starter Services.
2. YOUR RELATIONSHIP WITH COMPANY
2.1 Your Relationship with Company. In performing the JUMP Starter Services, you acknowledge and agree that you and Company are in a direct business relationship, and the relationship between the parties under this Agreement is solely that of independent contracting parties. You and the Company agree that nothing in this Agreement should be construed to create: (1) an employer-employee relationship; or (2) a joint venture, franchisor-franchisee, partnership or agency relationship; or, (3) any other relationship other than that of an independent contractor between you and the Company. You have no authority to bind the Company, and you will not undertake to represent yourself as an employee, agent or authorized agent of the Company. The Company does not, shall not, and shall not be deemed to, supervise, direct or control you generally or in your performance under this Agreement specifically, including in connection with your provision of JUMP Starter Services. You retain the sole right to determine when, where, and for how long you will perform JUMP Starter Services. In addition, subject to the limitations set forth herein, you can determine the method, manner, details and means of performing the JUMP Starter Services. You acknowledge and agree that: (1) you have no authority to enter into any agreement or contract that binds the Company or creates obligations on the part of the Company; and, (2) you are not eligible for any Company employee benefits and, to the extent that you otherwise would be eligible for any Company employee benefits except for the express terms of this Agreement, you expressly decline to participate in such Company employee benefits. With the exception of any federal, state or local permit/license rule or requirements, the Company shall have no right to require you to: (1) display the Company's names, logos or colors; or, (2) wear a uniform or any other clothing displaying the Company's names, logos or colors. You acknowledge and agree that you have complete discretion to provide JUMP Starter Services or otherwise engage in other business or employment activities with other companies.
3. PROVISION OF JUMP STARTER SERVICES
3.1 Provision of JUMP Starter Services. When the JUMP Starter App is active and you're in a determined vicinity of LEVs, an opportunity to provide JUMP Starter Services will appear on the JUMP Starter App. If you choose to accept the opportunity to provide JUMP Starter Services, the JUMP Starter App will provide you with certain relevant information. For example, the JUMP Starter App may display the location of a LEV available to be picked-up and charged as well as a drop-off location. As between Company and you, you acknowledge and agree that: (1) you shall be solely responsible for determining the most effective, efficient and safe manner to perform each instance of JUMP Starter Services; and, (2) except for the JUMP Starter App, you shall provide all necessary equipment, tools and other materials, at your own expense, necessary to perform JUMP Starter Services.
3.2 Eligibility. You acknowledge and agree that at all times, if you independently choose to provide Jump Starter Services, you shall: (1) possess the appropriate and current level of training, expertise and experience to provide JUMP Starter Services in a professional manner with due skill, care and diligence; and, (2) provide JUMP Starter Services with professionalism, service and courtesy consistent with industry standards for the JUMP Starter Service industry. You acknowledge and agree that, subject to your consent to the extent required by applicable law, you may be required to have a valid driver's license or be subject to certain background and driving record checks, from time to time, in order to qualify to provide, and remain eligible to provide JUMP Starter Services. You acknowledge and agree that Company reserves the right to deactivate or otherwise restrict you from accessing or using the JUMP Starter App or the JUMP Starter Services, or if you fail to meet the requirements set forth in this Agreement.
3.3 Your Independently Chosen Transportation Method. You acknowledge and agree that at all times, if you independently choose to provide Jump Starter Services via a certain mode of transportation, you shall: (1) hold and maintain a valid, applicable license and/or permit, with the appropriate level of certification, to operate your Transportation Method (e.g., a driver's license if your independently chosen transportation method is an automobile); (2) own or lease, or otherwise be in your lawful possession of your Transportation Method (e.g., the motor vehicle); (3) be maintained in good operating condition, consistent with industry safety and maintenance standards for the Transportation Method of its kind; and, (4) if applicable, fully comply with the insurance requirements contained in Section 8.
3.4 Credentials. To access the JUMP Starter App, you will need to create Credentials. To prevent fraud and help ensure JUMP Starter and User safety, you agree that you will maintain your Credentials in confidence and not share your Credentials with any third party. You will immediately notify Company of any actual or suspected breach or improper use or disclosure of your Credentials or the JUMP Starter App.
3.5 Logging off. If you do not wish to provide JUMP Starter Services for any period of time, you agree that you will log off of the JUMP Starter App.
3.6 Devices. Company encourages you to use Your Device in providing JUMP Starter Services.
3.6.2 Jump Starter App Interaction with Your Device: (1) you are solely responsible for the acquisition, cost and maintenance of Your Device as well as any necessary wireless data plan; and, (2) Company shall make available the JUMP Starter App for installation on Your Device. Company, its Affiliates, or their respective licensors hereby grant you a personal, non-exclusive, non-transferable license to install and use the JUMP Starter App on Your Device solely for the purpose of providing JUMP Starter Services. You agree to not provide, distribute or share, or enable the provision, distribution or sharing of, the JUMP Starter App (or any data associated therewith) with any third party. The foregoing license grant shall immediately terminate and you will delete and fully remove the JUMP Starter App from Your Device in the event that you permanently cease to provide JUMP Starter Services using Your Device. You agree that: (1) use of the JUMP Starter App on Your Device requires an active data plan with a wireless carrier associated with Your Device, which data plan will be provided by you at your own expense; and (2) use of the JUMP Starter App on Your Device may consume very large amounts of data through the data plan. COMPANY ADVISES THAT YOUR DEVICE ONLY BE USED UNDER A DATA PLAN WITH UNLIMITED OR VERY HIGH DATA USAGE LIMITS, AND COMPANY SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY FEES, COSTS, OR OVERAGE CHARGES ASSOCIATED WITH ANY DATA PLAN.
3.6.3 Location Based Services. You acknowledge and agree that your geo-location information must be provided via Your Device in order to provide JUMP Starter Services. You acknowledge and agree that: (1) your geo-location information may be obtained by the JUMP Starter App; and (2) your approximate location may be displayed to the Company before and during the provision of JUMP Starter Services. In addition, Company and its Affiliates may monitor, track and share with third parties your geo-location information obtained by the JUMP Starter App and Your Device for safety and security purposes. Company may not use geo-location to control or attempt to control the manner, means, method, and/or details of how you provide the JUMP Starter Services.
3.7 Documentation. To ensure your compliance with all requirements in Sections 3.3, you may be required to provide Company with written copies of all such licenses, identifications, permits, approvals, authority, registrations and certifications prior to your provision of any JUMP Starter Services. Company shall, upon request, be entitled to review such licenses, identifications, 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.
3.8 Prohibited Activities. While providing JUMP Starter Services, you agree that you will be solely responsible for the consequences of: any damage to LEVs; any damage or injury to yourself or third parties; entering any private or public property for which you do not have full authorization to enter; performing JUMP Starter Services in an unsafe, unprofessional, or unworkmanlike matter; any damage, depreciation, and/or wear and tear to your tools or personal property (as applicable); using electricity that you do or do not pay for (as applicable); overloading any electrical circuit while charging a Company LEV (as applicable); violating any law, statute, rule, permit, ordinance or regulation; and causing any third party to engage in the restricted activities above.
4. PAYMENT FOR YOUR SERVICES
4.1 JUMP Starter Payment. Payment amounts are displayed in the JUMP Starter App. There will be an amount listed for each pick-up or drop-off of any corresponding LEV. The JUMP Starter Payment is the total amount you could be paid for your provision of that particular JUMP Starter Service (the combined total of the pick-up and drop-off amounts, however, this amount is subject to certain Payment Terms and Conditions). The Payment Terms and Conditions are located in the JUMP Starter App. For your convenience, a direct link to the Payment Terms and Conditions are also located on each app screen where payout amounts are listed. Payment Terms and Conditions must be met to receive the payout amount displayed in the JUMP Starter App. Company reserves the right to modify or recover any payments made in error or due to any technical issues with its payment systems. Please see the Payment Terms and Conditions for full details. We reserve the right to update the Payment Terms and Conditions at any time. Updates to the Payment Terms and Conditions will be published and a new (more current) 'last updated' date will be displayed which will indicate that an update has occurred. Your continued use of the JUMP Starter App to provide JUMP Starter Services after the Payment Terms and Conditions have been updated constitutes your agreement with those changes.
4.2 Payment Frequency. Company agrees to remit, or cause to be remitted, to you on at least a weekly basis: the JUMP Starter Payment for all JUMP Starter Services provisioned within the preceding week, if all Payment Terms and Conditions are met (or no or partial payment depending on the Payment Terms and Conditions being met).
4.3 Changes to JUMP Starter Payment. Company reserves the right to change the methodology for calculating the JUMP Starter Payment at any time in Company's discretion based upon, for example, local market factors. Company will provide you with notice in the event of changes to the JUMP Starter Payment by either changing the payout amount displayed in the Jump Starter App or changing the Payment Terms and Conditions. Continued use of the JUMP Starter App to provide JUMP Starter Services after any such change shall constitute your consent to such change. Company reserves the right to adjust the JUMP Starter Payment for a particular instance of JUMP Starter Services for example, if fraud has occured. Company's decision to reduce or cancel the JUMP Starter Payment in any such manner shall be exercised in a reasonable manner.
4.4 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 JUMP Starter Services as required by applicable law; and (b) provide Company with all relevant tax information. You further acknowledge and agree that you are responsible for taxes on your own income arising from the performance of JUMP Starter Services. You understand Company will not withhold or make payments for social security, unemployment insurance or disability insurance contributions, or obtain workers' compensation insurance on your behalf. You agree to indemnify, defend and hold Company harmless from any liability for any breach of this Agreement by you, or any liability for or assessment of, any claims or penalties or interest with respect to such taxes.
4.5 No Additional Amounts. You acknowledge that the JUMP Starter Payment is intended as full compensation for your JUMP Starter Services. You acknowledge that the JUMP Starter Payment is the only payment you may receive from Company in connection with the provision of JUMP Starter Services. You are solely responsible for all of your own tools, equipment, insurance and any expenses that you incur in connection with your provision of the JUMP Starter Services.
5. PROPRIETARY RIGHTS; LICENSE
5.1 License Grant. Subject to the terms and conditions of this Agreement, Company, its Affiliates, or their respective licensors hereby grant you a royalty-free, non-exclusive, non-transferable, non-sublicensable, non-assignable license, during the term of this Agreement, to use the JUMP Starter App solely for the purpose of providing JUMP Starter Services and tracking resulting JUMP Starter Payment. All rights regarding the use of the JUMP Starter App not expressly granted to you are reserved by Company, its Affiliates and their respective licensors.
5.2 Restrictions. You shall not, and shall not allow any other party to: (1) license, sublicense, sell, resell, transfer, assign, distribute or otherwise provide or make available to any other party the JUMP Starter App in any way; (2) modify or make derivative works based upon the JUMP Starter Services or JUMP Starter App; (3) improperly use the JUMP Starter App, including creating Internet 'links' to any part of the JUMP Starter App, 'framing' or 'mirroring' any part of the JUMP Starter App on any other websites or systems, or 'scraping' or otherwise improperly obtaining data from the JUMP Starter App; (4) reverse engineer, decompile, modify, or disassemble the JUMP Starter App, except as allowed under applicable law; or (5) 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 JUMP Starter App to: (1) design or develop a competitive or substantially similar product or service; (2) copy or extract any features, functionality, or content thereof; (3) launch or cause to be launched on or in connection with the JUMP Starter App 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 JUMP Starter App; or, (4) attempt to gain unauthorized access to the JUMP Starter App or its related systems or networks.
5.3 Ownership. JUMP Starter App, Company Data, and all related intellectual property rights, including the JUMP Names, Marks, and Works, are and shall remain (as between you and Company) the property of Company, its Affiliates, or their respective licensors. Neither this Agreement nor your use of the JUMP Starter App or Company Data conveys or grants to you any rights in or related to the JUMP Starter App, Company Data, or related intellectual property rights, including the JUMP Names, Marks, and Works, except for the limited license granted in Section 5.1 above as otherwise limited by the Agreement. Company, its Affiliates, and their licensors do not authorize or provide a license to you to use, apply to register, reference, use, or copy, in any manner for any purposes, the JUMP Names, Marks, and Works, alone or in combination with other letters, punctuation, words, symbols, designs, and/or any creative works, except for the limited license granted in Section 5.1 above as otherwise limited by the Agreement. You agree that you will not apply to register, use, copy, and/or claim ownership in the JUMP Names, Marks, and Works, alone or in combination with other letters, punctuation, words, symbols, designs, and/or any creative works or in any confusingly or substantially similar mark, name, title, or work, except as may be permitted in the limited license granted in Section 5.1 above as otherwise limited by the Agreement.
6.1 Exposure. 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 data, Credentials, 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.
6.2 Property of Disclosing Party. Each party acknowledges and agrees that: (1) all Confidential Information shall remain the exclusive property of the disclosing party; (2) it shall not use Confidential Information of the other party for any purpose except in furtherance of this Agreement; (3) 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, (4) 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).
6.3 Not Confidential. Notwithstanding the foregoing Sections, Confidential Information shall not include any information to the extent it: (1) is or becomes part of the public domain through no act or omission on the part of the receiving party; (2) was possessed by the receiving party prior to the date of this Agreement without an obligation of confidentiality; or, (3) is disclosed to the receiving party by a third party having no obligation of confidentiality with respect thereto.
8.1 Motor Vehicle Use. You agree to maintain during the term of this Agreement, on all motor 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 requirements to operate a motor vehicle on the public roads within the Territory. This coverage must also include any no-fault and/or other coverages required by law in the Territory that may not be waived by an insured. You agree to provide Company and its Affiliates 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 8.1 upon request. Furthermore, you must provide Company with written notice of cancellation of any insurance policy required by Company at least thirty (30) days prior to such cancellation. 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 8.1 at all times.
8.2 Industrial Injuries. 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, as Company will not maintain any such (or related) insurance coverage on your behalf.
8.3 Scope of Your Own Insurance. You understand and acknowledge that your own insurance policy (e.g., automobile, homeowners, or other liability insurance policy) may not afford insurance coverage for liability, comprehensive, collision, medical payments, personal injury protection, uninsured motorist, underinsured motorist, damage to real property, damage to property in your care, custody and control, or other coverage for the JUMP Starter Services you provide pursuant to this Agreement. 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).
9. REPRESENTATIONS AND WARRANTIES; DISCLAIMERS
9.1 By You. You hereby represent and warrant that: (1) you have full power and authority to enter into this Agreement and perform your obligations hereunder; (2) you have not entered into, and during the term will not enter into, any agreement that would prevent you from complying with this Agreement; and, (3) 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 JUMP Starter Services and use the Transportation Method you chose, if any, while performing such JUMP Starter Services pursuant to this Agreement.
9.2 Disclaimer of Warranties. COMPANY AND ITS AFFILIATES PROVIDE, AND YOU ACCEPT, THE JUMP STARTER APP ON AN 'AS IS' AND 'AS AVAILABLE' BASIS. COMPANY AND ITS AFFILIATES DO NOT REPRESENT, WARRANT OR GUARANTEE THAT YOUR ACCESS TO OR USE OF THE JUMP STARTER APP: (A) WILL BE UNINTERRUPTED OR ERROR FREE; OR (B) WILL RESULT IN ANY REQUESTS FOR JUMP STARTER SERVICES. 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 JUMP STARTER APP. COMPANY DOES NOT REPRESENT, WARRANT OR GUARANTEE THE SAFETY OF ANY ITEMS PROVIDED TO YOU FOR JUMP STARTER SERVICES. COMPANY AND ITS AFFILIATES EXPRESSLY DISCLAIM ALL LIABILITY FOR ANY ACT OR OMISSION OF YOU, ANY USER, ANY JUMP STARTER OR OTHER THIRD PARTY.
9.3 No Service Guarantee. COMPANY AND ITS AFFILIATES DO NOT GUARANTEE THE AVAILABILITY OR UPTIME OF THE JUMP STARTER APP OR JUMP STARTER SERVICES. YOU ACKNOWLEDGE AND AGREE THAT THE JUMP STARTER APP MAY BE UNAVAILABLE AT ANY TIME AND FOR ANY REASON (e.g., DUE TO SCHEDULED MAINTENANCE OR NETWORK FAILURE). FURTHER, THE JUMP STARTER APP MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS, AND COMPANY AND ITS AFFILIATES ARE NOT RESPONSIBLE FOR ANY DELAYS, JUMP STARTER SERVICES FAILURES, OR OTHER DAMAGES, LIABILITIES OR LOSSES RESULTING FROM SUCH PROBLEMS.
10.1 Indemnify. You shall indemnify, defend (at Company's option) and hold harmless Company and its Affiliates and their respective officers, directors, employees, agents, successors and assigns from and against any and all liabilities, claims, expenses (including attorneys' fees and court costs), damages, penalties, fines, social security contributions and taxes arising out of or related to: (1) your breach of your representations, warranties or obligations under this Agreement; or, (2) your provision or your failure to provide JUMP Starter Services. This indemnification provision shall not apply to your breach of any representations regarding your status as an independent contractor.
10.2 Waive, Release, and Discharge. YOU WAIVE, RELEASE, AND FOREVER DISCHARGE Company, it's parents, subsidiaries and affiliates (including, without limitation, Uber and its subsidiaries and affiliates), the JUMP Starter Services sponsors, organizers, promoters, staff, advertisers, volunteers, property owners, administrators, contractors, any and all other vendors and all other individuals or entities involved, and all state, city, town, county, and other governmental bodies and their elected and appointed officials, officers, employees, agents, and other municipal agencies whose property and/or personnel are used and/or in any way assist in locations in which the JUMP Starter Services takes place, and each of their respective parent, subsidiary and affiliated companies, officers, directors, partners, board members, shareholders, attorneys, insurers, agents, employees, volunteers, and other participants and representatives (individually and collectively, the 'Released Parties') from any and all claims.
11. LIMITS OF LIABILITY
11.1 Company Shall. COMPANY AND ITS AFFILIATES SHALL NOT BE LIABLE 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 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 4 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 OR ITS AFFILIATES UNDER THIS AGREEMENT EXCEED PAYOUT AMOUNT ACTUALLY PAID BY COMPANY OR DUE TO YOU HEREUNDER IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.
12. TERM AND TERMINATION
12.1 Term. This Agreement shall commence on the date executed by you and shall continue until terminated as set forth herein. The parties acknowledge that the term of this Agreement does not reflect an uninterrupted service arrangement, as this Agreement guarantees you the right to choose when to make yourself available and each JUMP Starter Service request you accept via the JUMP Starter App is treated as a separate service arrangement.
12.2 Termination. Either party may terminate this Agreement: (1) without cause at any time upon seven (7) days prior written notice to the other party (2) immediately, without notice, for the other party's material breach of this Agreement; or, (3) 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 and/or deactivate your Credentials immediately, without notice, with respect to you in the event you no longer qualify, under applicable law or the standards and policies of Company and its Affiliates, to provide JUMP Starter Services or to operate your Transportation Method, or as otherwise set forth in this Agreement. Company retains the right to deactivate or otherwise restrict you from accessing or using the JUMP Starter App or the JUMP Starter Services in the event of a violation or alleged violation of this Agreement, your disparagement of Company or any of its Affiliates, your act or omission that causes harm to Company's or its Affiliates' brand, reputation or business as determined by Company in its sole and reasonable discretion.
12.3 Effect of Termination. Upon termination of the Agreement, you shall: immediately delete and fully remove the JUMP Starter App from any of Your Devices. Outstanding payment obligations and Sections 1, 2, 4, 5, 6, 7, 9, 10, 11, 12, 13, 14 and 15 (including, but not limited to, Section 14.3) shall survive the termination of this Agreement.
13. MISCELLANEOUS TERMS
13.1 Modification. Any modifications that the Company makes to the terms and conditions of this Agreement or hyperlinks herein shall be binding on you and your continued use of the JUMP Starter App or JUMP Starter Services constitutes your acceptance of any such modification. You hereby acknowledge and agree that, by continuing to provide JUMP Starter Services or using the JUMP Starter App, or downloading, installing or using the JUMP Starter App after such modifications are made, you are bound by any future modifications to information referenced in those modification or new hyperlinks.
13.2 Supplemental Terms. Supplemental terms may apply to your use of the JUMP Starter App, 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.
13.3 Severability. If any provision of this Agreement is or becomes invalid or non-binding, the parties shall remain bound by all other provisions hereof. Any invalid or non-binding provision shall be severed or restricted, in order to preserve as much of the parties' Agreement as possible and in light of the contents and purpose of this Agreement.
13.4 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.
13.5 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.
13.6 No Third Party Beneficiaries. There are no third party beneficiaries to this Agreement, except as expressly set forth in the Arbitration Provision in Section 14.3. Other than as provided in Section 14.3, nothing contained in this Agreement is intended to or shall be interpreted to create any third-party beneficiary claims.
13.7 Notices. Any notice delivered by Company to you under this Agreement will be delivered by email to the email address associated with your account, by posting on the portal available to you, or via the JUMP Starter App. Any notice delivered by you to Company under this Agreement will be delivered by contacting Company at https://help.uber.com/partners/article/jump-starter-help?nodeId=e2fffb2b-1efc-4b65-b2d9-ce8d59bbc8ef. Additional Territory-specific notices may be required from time to time.
13.8 Choice of Law. The interpretation of this Agreement shall be governed by California law, without regard to the choice or conflicts of law provisions of any jurisdiction.
14. GOVERNING LAW; ARBITRATION
14.1 The choice of law provisions contained in this Section 14.1 do not apply to the arbitration clause contained in Section 14.3, such arbitration clause being governed by the Federal Arbitration Act. Accordingly, and except as otherwise stated in Section 14.3, the interpretation of this Agreement shall be governed by California law, without regard to the choice or conflicts of law provisions of any jurisdiction. Any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the JUMP Starter Services that are not subject to the arbitration clause contained in Section 14.3 shall be subject to the exclusive jurisdiction of the state and federal courts located in the City and County of San Francisco, California. However, neither the choice of law provision regarding the interpretation of this Agreement nor the forum selection provision is intended to create any other substantive right to non-Californians to assert claims under California law whether that be by statute, common law, or otherwise. These provisions, and except as otherwise provided in Section 14.3, are only intended to specify the use of California law to interpret this Agreement and the forum for disputes asserting a breach of this Agreement, and these provisions shall not be interpreted as generally extending California law to you if you do not otherwise reside or provide services in California. The foregoing choice of law and forum selection provisions do not apply to the arbitration clause in Section 14.3 or to any arbitrable disputes as defined therein. Instead, as described in Section 14.3, the Federal Arbitration Act shall apply to any such disputes. The failure of Company to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Company in writing.
14.2 Other Than. Other than disputes regarding the intellectual property rights of the parties and other claims identified in Section 14.3.2, any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or JUMP Starter Services shall be subject to arbitration pursuant to Section 14.3.
14.3 Arbitration Provision. An important note regarding this arbitration provision:
Except as otherwise provided below, arbitration does not limit or affect the legal claims you may bring against the Company. Agreeing to arbitration only affects where any such claims may be brought and how they will be resolved.
Arbitration is a process of private dispute resolution that does not involve the civil courts, a civil judge, or a jury. Instead, the parties' dispute is decided by a private arbitrator selected by the parties using the process set forth herein. Other arbitration rules and procedures are also set forth herein.
In arbitration, you will not be required to bear any type of fee or expense that you would not be required to bear if you filed the action in a court of law.
IMPORTANT: Except as otherwise provided below, this Arbitration Provision will require you to resolve any claim that you may have against the Company or on an individual basis. Except as otherwise provided below, this provision will also preclude you from initiating, participating in, or recovering any relief in a class, collective, or representative action against the Company, Uber, or Uber's Affiliates. The availability of claims or actions under the Private Attorneys General Act of 2004, California Labor Code section 2698 et seq. ('PAGA') is addressed separately below in the 'Private Attorneys General Act' section.
WHETHER TO AGREE TO ARBITRATION IS AN IMPORTANT BUSINESS DECISION. IT IS YOUR DECISION TO MAKE, AND YOU SHOULD NOT RELY SOLELY UPON THE INFORMATION PROVIDED IN THIS AGREEMENT AS IT IS NOT INTENDED TO CONTAIN A COMPLETE EXPLANATION OF THE CONSEQUENCES OF ARBITRATION. YOU SHOULD TAKE REASONABLE STEPS TO CONDUCT FURTHER RESEARCH AND TO CONSULT WITH OTHERS -- INCLUDING BUT NOT LIMITED TO AN ATTORNEY -- REGARDING THE CONSEQUENCES OF YOUR DECISION, JUST AS YOU WOULD WHEN MAKING ANY OTHER IMPORTANT BUSINESS OR LIFE DECISION.
14.3.1 How This Arbitration Provision Applies. This Arbitration Provision is governed by the Federal Arbitration Act, 9 U.S.C. secion 1 et seq. (the 'FAA'). Except as it otherwise provides, this Arbitration Provision applies to any dispute, past, present or future, arising out of or related to this Agreement or formation or termination of the Agreement and survives after the Agreement terminates. Nothing contained in this Arbitration Provision shall be construed to prevent or excuse you from utilizing any informal procedure for resolution of complaints established in this Agreement (if any), and this Arbitration Provision is not intended to be a substitute for the utilization of such procedures. Prior to initiating an arbitration, you and Company each agree to notify the other party in writing of any dispute and to attempt to negotiate an informal resolution. Notice to Company must be sent to Social Bicycles LLC, Attn: Legal Department, 1455 Market Street, Suite 400, San Francisco, California 94103. Neither party shall initiate arbitration until 30 days after the notice is sent. This agreement shall be governed by the FAA even in the event this Arbitration Provision is found to be exempt from the FAA as a matter of law. Any disputes in this regard shall be resolved exclusively by an arbitrator. In the event the arbitrator determines the FAA does not apply, the state law governing arbitration agreements shall be subject to the exclusive jurisdiction of the state and federal courts located in the City and County of San Francisco, California. Except as it otherwise provides, this Arbitration Provision is intended to apply to the resolution of disputes that otherwise would be resolved in a court of law or before any forum other than arbitration, with the exception of proceedings that must be exhausted under applicable law before pursuing a claim in a court of law or in any forum other than arbitration. Except as it otherwise provides, this Arbitration Provision requires all such disputes to be resolved only by an arbitrator through final and binding arbitration on an individual basis only and not by way of court or jury trial, or by way of class, collective, or representative action.
Except as provided in Section 14.3.5, below, regarding the Class Action Waiver and PAGA Waiver, such disputes include disputes arising out of or relating to interpretation, application, enforceability, revocability or validity of this Arbitration Provision, or any portion of the Arbitration Provision. This also includes disputes regarding whether the Arbitration Provision is governed by the FAA. All such matters shall be decided by an Arbitrator and not by a court or judge. As set forth in Section 14.3.5, the preceding sentences in this paragraph shall not apply to disputes relating to the Class Action Waiver or PAGA Waiver, defined below, including their interpretation, enforceability, revocability or validity.
Except as it otherwise provides, this Arbitration Provision also applies to all disputes between you and the Company or Uber, as well as all disputes between you and the Company's or Uber's fiduciaries, administrators, affiliates, subsidiaries, parents, and all successors and assigns of any of them, including but not limited to any disputes arising out of or related to this Agreement and disputes arising out of or related to your relationship with the Company or Uber, including the formation or termination of the relationship. Except as it otherwise provides, this Arbitration Provision also applies to disputes regarding any city, county, state or federal wage-hour law, trade secrets, unfair competition, compensation, breaks and rest periods, expense reimbursement, termination, harassment, retaliation, discrimination, and claims arising under the Uniform Trade Secrets Act, Civil Rights Act of 1964, Americans With Disabilities Act, Age Discrimination in Employment Act, Family Medical Leave Act, Fair Labor Standards Act, Employee Retirement Income Security Act (except for individual claims for employee benefits under any benefit plan sponsored by the Company and covered by the Employee Retirement Income Security Act of 1974 or funded by insurance), Genetic Information Nondiscrimination Act, torts, fraud, and state statutes, if any, addressing the same or similar subject matters, and all other similar federal, state and/or local statutory and common law claims .This Arbitration Provision is intended to require arbitration of every claim or dispute that lawfully can be arbitrated, except for those claims and disputes which by the terms of this Arbitration Provision are expressly excluded from arbitration. Uber Technologies, Inc. is an intended third-party beneficiary of this Agreement and the Arbitration Provision. As used in this Arbitration Provision, 'the Company' shall be deemed to include Uber Technologies, Inc.
14.3.2 Limitations On How This Arbitration Provision Applies. The disputes, claims, and requests for relief set forth below shall not be subject to arbitration and the requirement to arbitrate set forth in this Arbitration Provision shall not apply to:
Claims for workers compensation, state disability insurance and unemployment insurance benefits;
Disputes that are not permitted to be subject to a pre-dispute arbitration agreement pursuant to applicable Federal law or Executive Order;
If a court of competent jurisdiction finds the PAGA Waiver set forth below in Section 14.3.4 to be unenforceable or invalid for any reason, representative claims brought under the Private Attorneys General Act of 2004, California Labor Code section 2698 et seq. ('PAGA');
Disputes regarding your, the Company's, or Uber's intellectual property rights.
Disputes for which the value of the alleged claim is subject to the jurisdiction of small claims court in the state in which you reside.
Furthermore, nothing in this Arbitration Provision prevents you from making a report to or filing a claim or charge with the Equal Employment Opportunity Commission, U.S. Department of Labor, Securities Exchange Commission, National Labor Relations Board, or Office of Federal Contract Compliance Programs, and nothing in this Agreement or Arbitration Provision prevents the investigation by a government agency of any report, claim or charge otherwise covered by this Arbitration Provision.Nothing in this Arbitration Provision shall be deemed to preclude or excuse a party from bringing an administrative claim before any agency in order to fulfill the party's obligation to exhaust administrative remedies before making a claim in arbitration.
14.3.3 Selecting The Arbitrator and Location of the Arbitration. The Arbitrator shall be selected by mutual agreement of the Company and you. Unless you and the Company mutually agree otherwise, the Arbitrator shall be an attorney licensed to practice in the location where the arbitration proceeding will be conducted or a retired federal or state judicial officer who presided in the jurisdiction where the arbitration will be conducted. If the parties cannot agree on an Arbitrator, then an arbitrator will be selected using the alternate strike method from a list of five (5) neutral arbitrators provided by JAMS (Judicial Arbitration & Mediation Services). You will have the option of making the first strike. If a JAMS arbitrator is used, then the JAMS Streamlined Arbitration Rules & Procedures rules will apply; however, if there is a conflict between the JAMS Rules and this Arbitration Provision, this Arbitration Provision shall govern. Those rules are available here: http://www.jamsadr.com/rules-streamlined-arbitration/ The location of the arbitration proceeding shall be no more than 45 miles from the place where you provide the majority of your JUMP Starter Services under this Agreement (or if you have never performed JUMP Starter Services, from the city in which you reside), unless each party to the arbitration agrees in writing otherwise.
14.3.4. Starting The Arbitration. All claims in arbitration are subject to the same statutes of limitation that would apply in court. The party bringing the claim must demand arbitration in writing and deliver the written demand by hand or first class mail to the other party within the applicable statute of limitations period. The demand for arbitration shall include identification of the parties, a statement of the legal and factual basis of the claim(s), and a specification of the remedy sought. Any demand for arbitration made to the Company or Uber shall be provided to the following address: Legal, Social Bicycles, LLC, 1455 Market St., Ste. 400, San Francisco, CA 94103. The arbitrator shall resolve all disputes regarding the timeliness or propriety of the demand for arbitration. A party may apply to a court of competent jurisdiction for temporary or preliminary injunctive relief in connection with an arbitrable controversy, but only upon the ground that the award to which that party may be entitled may be rendered ineffectual without such provisional relief.
14.3.5 How Arbitration Proceedings Are Conducted. In arbitration, the parties will have the right to conduct adequate civil discovery, bring dispositive motions, and present witnesses and evidence as needed to present their cases and defenses, and any disputes in this regard shall be resolved by the Arbitrator. You and the Company agree to resolve any dispute that is in arbitration and subject to this Arbitration Provision on an individual basis only, and not on a class, collective action, or representative basis ('Class Action Waiver'). The Arbitrator shall have no authority to consider or resolve any claim or issue any relief on any basis other than an individual basis. The Arbitrator shall have no authority to consider or resolve any claim or issue any relief on a class, collective, or representative basis. The term 'representative' in this paragraph includes all representative actions that are subject to this Arbitration Provision, except for claims or actions under the Private Attorneys General Act of 2004, California Labor Code section 2698 et seq. ('PAGA'). Your ability to assert, participate in, or obtain recovery for PAGA claims or actions is addressed separately below in the subsection entitled 'Private Attorneys General Act.' Notwithstanding any other provision of this Arbitration Provision, the Agreement, or the JAMS Streamlined Arbitration Rules & Procedures, disputes regarding the enforceability, revocability or validity of the Class Action Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. In any case in which (1) the dispute is filed as a class, collective, or representative action and (2) there is a final judicial determination that all or part of the Class Action Waiver is unenforceable, the class, collective, and/or representative action to that extent must be litigated in a civil court of competent jurisdiction, but the portion of the Class Action Waiver that is enforceable shall be enforced in arbitration. While the Company will not take any retaliatory action in response to any exercise of rights you may have under Section 7 of the National Labor Relations Act, if any, the Company shall not be precluded from moving to enforce its rights under the FAA to compel arbitration on the terms and conditions set forth in this Arbitration Provision.
Private Attorneys General Act. To the extent permitted by law, you and Company agree not to bring a representative action on behalf of others under the Private Attorneys General Act of 2004, California Labor Code section 2698 et seq. ('PAGA'), in any court or in arbitration. This waiver shall be referred to as the 'PAGA Waiver.' Notwithstanding any other provision of this Agreement or the Arbitration Provision, the validity of the PAGA Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. If the PAGA Waiver is found to be unenforceable or unlawful for any reason, (1) the unenforceable provision shall be severed from this Arbitration Provision; (2) severance of the unenforceable provision shall have no impact whatsoever on the Arbitration Provision or the Parties' attempts to arbitrate any remaining claims on an individual basis pursuant to the Arbitration Provision; and, (3) any representative actions brought under the PAGA must be litigated in a civil court of competent jurisdiction in accordance with Section 14.3.1 of this Arbitration Provision. If the PAGA Waiver is found to be unenforceable or unlawful for any reason, the Parties agree that the litigation of any representative PAGA claims in a civil court of competent jurisdiction shall be stayed, pending the outcome of any individual claims in arbitration.
14.3.6 Paying For The Arbitration. Each party will pay the fees for his, her or its own attorneys, subject to any remedies to which that party may later be entitled under applicable law (i.e., a party prevails on a claim that by law provides for the award of reasonable attorney fees to the prevailing party). In all cases where required by law or by agreement of Company or its Affiliates, the Company will pay the Arbitrator's and arbitration fees. If under applicable law the Company is not required to pay all of the Arbitrator's and/or arbitration fees, Company and you will share filing fees to the extent permitted under applicable law, but you will not be required to bear any type of fee or expense that you would not be required to bear if you had filed the action in a court of law.
14.3.7 The Arbitration Hearing And Award. The parties will arbitrate their dispute before the Arbitrator, who shall confer with the parties regarding the conduct of the hearing and resolve any disputes the parties may have in that regard. Within 30 days of the close of the arbitration hearing, or within a longer period of time as agreed to by the parties or as ordered by the Arbitrator, any party will have the right to prepare, serve on the other party and file with the Arbitrator a brief. The Arbitrator may award any party any remedy to which that party is entitled under applicable law, but such remedies shall be limited to those that would be available to a party in his or her individual capacity in a court of law for the claims presented to and decided by the Arbitrator, and no remedies that otherwise would be available to an individual in a court of law will be forfeited by virtue of this Arbitration Provision. The Arbitrator will issue a decision or award in writing, stating the essential findings of fact and conclusions of law. A court of competent jurisdiction shall have the authority to enter a judgment upon the award made pursuant to the arbitration.
14.3.8. Full and Complete Agreement Related to Formal Resolution of Disputes; Enforcement Of This Arbitration Provision. This Arbitration Provision is the full and complete agreement relating to the formal resolution of disputes arising out of or related to this Agreement and/or arising out or related to any JUMP Starter Services you may provide. In the event any portion of this Arbitration Provision is deemed unenforceable or invalid, the unenforceable or invalid provision or provisions shall be restricted or severed from this Arbitration Provision, in order to preserve as much of the parties' Arbitration Provision as possible.
By clicking 'Accept' (or similar) or by signing below (as such may be required by applicable law), you expressly acknowledge that you have read, understood, and taken steps to thoughtfully consider the consequences of this Agreement, that you agree to be bound by the terms and conditions of the Agreement and have knowingly executed it, and that you are legally competent to enter into this Agreement with Company.