This Driver Partner Agreement (“Agreement”) constitutes a legal agreement between you, an individual (“you”) and Cargo Systems, Inc. (“Company”).
By clicking “I accept”, 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 that you are legally competent to enter into this Agreement with Company.
Company provides goods for providers of transportation services to display, give and/or sell to their passengers using the Cargo Services (as defined below). Cargo provides certain goods and samples to you through the Cargo Services for you to display, give and/or sell to users of your transportation services. You desire to enter into this Agreement for the purpose of accessing and using the Cargo Services.
In order to use the Cargo Services, 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.
IMPORTANT: please note that to use the Cargo services, you must agree to the terms and conditions set forth below. Please review the arbitration provision set forth below 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 electronic 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) and have taken time to consider the consequences of this important business decision.
1.1 “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.
1.2 “Brand Partner” means one or more third party retail or consumer packaged goods brands that provide goods or samples to Cargo for use in Cargo Services or offer to Users during their use of the Cargo Web App.
1.3 “Company Data” means all data related to the access and use of the Cargo Services hereunder, including all data related to Users (including User Information), all data related to your Transportation Services and provision of the Cargo Services and the Cargo Web App, and the Driver ID.
1.4 “Cargo Box” means the center console product display unit provided by Cargo.
1.5 “Cargo Equipment” means the Cargo Box, any accessories provided by Cargo, and all goods and samples provided to you by Cargo.
1.6 “Cargo ID” means the 4-digit unique code on your Cargo Box that Users use to access the Cargo Web App.
1.7 “Cargo Services” means the system by which the Company provides you with certain goods and other sales materials that enable Users to sample and purchase certain goods while using your Transportation Services, enables Users to order goods and samples from your Cargo Box or order other goods and samples provided by Cargo or Brand Partners; such Cargo Services include access to Cargo’s software, websites, payment services as described in Section 4 below, and related support services systems, as may be updated or modified from time to time.
1.8 “Cargo Web App” means the web application provided by Company that enables transportation providers and Users to access the Cargo Services or any Cargo website and for the Company to obtain certain information about you and the Users, as may be updated or modified from time to time.
1.9 “Driver Device” means a mobile device owned or controlled by you that uses the registered phone number on your Driver Profile.
1.10 “Driver Partner Payments” means the payments made to you, less any deductions, as described in Section 4 below.
1.11 “Driver Profile” means the part of the Cargo Web App that enables you to update your shipping address, banking and billing information, Transportation Services information, and phone number, in addition enabling you to view your earnings from Company, access customer support from Company, and view certain Company Data.
1.12 “Ridesharing Partner” means one or more third party transportation services applications, including but not limited to Uber, Lyft, Via, Gett, and Juno.
1.13 “Transportation Services” means your provision of passenger transportation services to Users using the Vehicle, as permitted by laws and regulations.
1.14 “User” means a passenger using your Transportation Services, as permitted by laws and regulations.
1.15 “User Device” means a mobile device owned or controlled by a User that accesses Cargo Services.
1.16 “User Information” means information about a User made available to the Company in connection with such User’s use of your Transportation Services and/or the Cargo Services.
1.17 “Vehicle” means your vehicle that meets the then-current Company and Ridesharing Partner requirements for a vehicle to provide the Cargo Services.
2 Use of the Cargo Services
2.1 Cargo IDs
Cargo will issue you a Cargo ID to enable Users to access and use the Cargo Web App on a User Device in accordance with this Agreement. You acknowledge and agree that Company reserves the right, at any time in Company’s sole discretion to deactivate your Cargo ID. You will immediately notify Company of any actual or suspected improper use of your Cargo ID or the Cargo Web App.
2.2 Provision of Cargo Services; Sale of Goods
You agree to abide by all laws, statutes, ordinances, and regulations applicable to the operation of the Vehicle. You agree not to dispense, deliver, or provide good(s), product(s), or sample(s) while the vehicle is in motion and/or it is not safe to do so. You agree not to dispense, deliver, or provide good(s), product(s), or sample(s) while on airport property or as otherwise prohibited by applicable, law, rule or regulation. You agree to authorize the Company to receive information from the Ridesharing Partners regarding your provision of the Transportation Services. You agree to follow all instructions in the then-current setup manual provided to you by the Company, including but not limited to maintaining the Cargo Equipment in the center console (the arm rest or center area between the driver and front passenger seats) at all times that you provide any Transportation Services and using your Driver Device to activate your Cargo ID and receive communications from the Company. You agree to store the inventory of extra products in your trunk or other secure location at all times. You are solely responsible for loss of or damage to the Cargo Equipment (including all goods and samples) while in your possession. You agree to replace stocks of products in your Cargo Box within 24 hours when you have necessary resupplies provided by the Company. Failure to do any of the above is a breach of this Agreement and the Company may terminate this Agreement and your right to use the Cargo Services at any time.
When a User orders a good, product, and/or sample through Cargo Services, you agree to provide said good(s), product(s), and/or sample(s) to the User once you receive a confirmation SMS from Company, and only while the Vehicle is stopped, not in motion, and it is safe to do so. You agree not to provide Users with any of Company's good(s), product(s), and/or sample(s) that were not ordered through Cargo Services. You agree not to request or take cash from Users in exchange for Cargo products.
You agree to keep your shipping address up to date on your Driver Profile. You assume responsibility for receiving shipments sent by the Company and for any damages that occur to Cargo Equipment after shipments are delivered to your address on file in your Driver Profile. You agree to keep your Cargo Box fully stocked at all times using products that Cargo sends you. You agree to place products in the location in the Cargo Unit as instructed by Company. You agree that you will be held responsible for any loss or damage that occurs to Cargo Equipment that has been delivered to the address on file in your Driver Profile, and that the Company may charge you for lost or damaged Cargo Equipment up to the costs as listed for unreturned Cargo Equipment here.
You agree to ship any Cargo Equipment provided you back to the Company at a specified address if and when requested by the Company.
2.2.5 Upon Termination
Upon termination of this Agreement, you will be required to return some or all Cargo Equipment within 7 days to a specified address as requested by the Company. You agree that if the requested Cargo Equipment has not been received at the specified address within 7 days, Cargo may charge you for the value of said Cargo Equipment at the rates listed for unreturned Cargo equipment as listed here.
In the event of theft of any Cargo Equipment, you agree to file a police report and send the report to Cargo as proof by emailing it to firstname.lastname@example.org. You agree that if you do not send Cargo an official police report within 7 days of the theft, Cargo may charge you for the value of the lost Cargo Equipment at the same rates listed for unreturned Cargo equipment as listed here.
2.2.7 You acknowledge and agree that:
(1) YOU WILL NOT USE CARGO WHILE YOUR CAR IS MOTION, AND YOU WILL NOT DISPENSE, DELIVER, OR PROVIDE GOOD(S), PRODUCT(S), OR SAMPLE(S) UNLESS THE VEHICLE IS STOPPED, NOT IN MOTION, AND IT IS SAFE TO DO SO and you shall interact with your Driver Device and provide the Cargo Services to Users only while your car is stopped, in a manner which is safe and which does not interfere with or inhibit your ability to provide the Transportation Services; and
(2) except for the Cargo Equipment and the Cargo Services, you shall provide all necessary equipment, tools and other materials, at your own expense, necessary to perform Transportation Services and provide the Cargo Services to Users. You acknowledge and agree that Cargo will not be held responsible for any damage to your vehicle or injury(ies) to a person or persons or any damage caused by your vehicle in the event of improper use of Cargo, and that you will be held responsible for such damage(s) and injury(ies).
2.2.8 SMS Communication
You agree that you will get SMS messages from the Company in response to each User Order and for general communications from the Company regarding Cargo services. Message & data rates may apply. To stop receiving SMS messages from the Company, reply STOP to [shortcode number]. You agree that if you choose to stop receiving SMS messages from the company, this Agreement will be terminated and you must follow the processes described in section 2.2(f) of this Agreement. To receive help or information from the Company regarding Cargo Services, text HELP to [shortcode number].
2.3 Your Relationship with Users
You acknowledge and agree that your provision of Transportation Services to Users creates a direct business relationship between you and the User for those services and the Company is in no way affiliated with or responsible for any Transportation Services. Company is not responsible or liable for the actions or inactions of a User in relation to you, your activities, your actions, your failure to act, 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 the Cargo Services and Transportation Services. You acknowledge and agree that you are solely responsible for taking such precautions as may be reasonable, necessary, and proper (including, without limitation, maintaining adequate insurance that meets the requirements of all applicable laws including motor vehicle financial responsibility laws) regarding any acts or omissions of you, a User, or third party. You acknowledge and agree that the use of Cargo services in your Transportation Services may result in altered tips or ratings as a transportation provider.
2.4 Your Relationship with Company
You acknowledge and agree that Company’s provision to you of a Driver Profile, the Cargo Equipment Cargo Services, and communications with Cargo creates a direct business relationship between Company and you. 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 Transportation Services, your acts or omissions, or your operation and maintenance of your Vehicle. You retain the sole right to determine when, where, and for how long you will utilize the Cargo Services. 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 or any of its Affiliates’ names, logos or colors on your Vehicle(s); or (b) wear a uniform or any other clothing displaying Company’s or any of its Affiliates’ names, logos or colors. You acknowledge and agree that you have complete discretion to provide services or otherwise engage in other business or employment activities. For the sake of clarity, you understand that you retain the complete right to; (i) use other software application services in addition to the Cargo Services and (ii) engage in any other occupation or business. 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 Cargo Services.
You are responsible for the acquisition, cost and maintenance of your Driver Device as well as any necessary wireless data plan. You agree to not provide, distribute or share, or enable the provision, distribution or sharing of, access to your Driver Profile or Company Data to any third party. You agree that: (i) use of the Cargo Web App on your Driver Device requires an active data and messaging plan with a wireless carrier associated with your Driver Device, which data and messaging plan will be provided by you at your own expense; and (ii) use of the Cargo Web App on your Driver Device as an interface with the Cargo Services may consume data through the data plan and standard messaging rates apply. COMPANY SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY FEES, COSTS, OR OVERAGE CHARGES ASSOCIATED WITH ANY WIRELESS CARRIER PLAN.
3 You and Your Vehicle
3.1 Your Requirements
You acknowledge and agree that at all times, you shall: (a) hold and maintain (i) a valid driver's license with the appropriate level of certification to operate your Vehicle, (ii) all licenses, permits, approvals and authority applicable to you that are necessary to provide the Cargo Services and Transportation Services to Users; (b) possess the appropriate and current level of training, expertise and experience to provide Transportation Services in a professional manner with due skill, care and diligence; and (c) maintain high standards of professionalism, service and courtesy. 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 Cargo Web App, or the Cargo Services.
3.2 Vehicle Requirements
You acknowledge and agree that your Vehicle shall at all times be: (a) properly registered and licensed to operate as a passenger transportation vehicle in the Territory; (b) owned or leased by you, or otherwise in your lawful possession; and (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, and in a clean and sanitary condition.
4 Financial Terms
4.1 Driver Partner Payments
You will receive an email that defines your earnings structure before receiving your Cargo box. Your promotions may also be present in your Driver Dashboard. All promotional weeks will be calculated from Monday-Monday in Eastern Standard Time. The Company will not pay you for sales that the Company determines to be fraudulent. The Company may also pay you additional bonuses at its discretion, and the Company may offer different incentives to different drivers. You acknowledge that transportation providers using Cargo services will have a varying range of earnings and that your earnings may be lower than other drivers or lower than average earnings that the Company represents in marketing materials or its websites, and you agree that Cargo will not be held responsible for lower earnings. You acknowledge and agree that the Driver Partner Payments are the only payments you will receive in connection with the provision of Cargo Services to Users, and that the Driver Partner Payments will not include any withholdings or deductions of taxes.
4.2 Changes to Driver Partner Payments
Company reserves the right to change the amounts and respective requirements of Driver Partner Payments at any time in Company’s discretion, and Company will provide you with notice in the event of changes to your future earnings. Continued use of the Cargo Services after any such change in Driver Partner Payments shall constitute your consent to such change.
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 Transportation Services and receipt of Driver Partner Payments providing the Cargo Services to Users as required by applicable law; and (b) provide Company with all relevant tax information. 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 Cargo Services and/or provide any of the relevant tax information you have provided pursuant to the foregoing requirements in this Section 4.3 directly to the applicable governmental tax authorities on your behalf or otherwise.
4.4 Termination Fee
Failure to return all Cargo Equipment within 7 days of termination of this Agreement by either party will result in a termination fee (“Termination Fee”) to be charged to you. Potential termination fees could result in a charge of up to $100, including $25 for an unreturned Cargo Box, $3 each for unreturned Cargo Box dividers, $10 for an unreturned Cargo USB Power Adapter, $5 for an unreturned Cargo power cord, $5 for an unreturned Cargo strap, and 3x the wholesale value of each unreturned product in your inventory. The details of the Termination Fee are also located here.
5 Proprietary Rights; License
5.1 License Grant
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 Cargo Services (including the Cargo Web App on a Driver Device) solely for the purpose of providing Cargo Services to Users. All rights not expressly granted to you are reserved by Company, its Affiliates and their respective licensors.
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 Cargo Services, Cargo Equipment, Cargo Web App, or communications to you from the Company in any way; (b) modify or make derivative works based upon the Cargo Services, Cargo Equipment or Cargo Web App; (c) improperly use the Cargo Services, Cargo Web App or Cargo Equipment, including creating Internet “links” to any part of the Cargo Services, Cargo Web App, “framing” or “mirroring” any part of the Cargo Services or Cargo Web App on any other websites or systems, or “scraping” or otherwise improperly obtaining data from the Cargo Services or Cargo Web App; (d) reverse engineer, decompile, modify, or disassemble the Cargo Services or Cargo Web App, 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 Cargo Services or Cargo Web App 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 Cargo 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 Cargo Services; or (iv) attempt to gain unauthorized access to the Cargo Services or its related systems or networks.
The Cargo Services, Cargo Equipment, Cargo Web App, communications between you and the Company, and Company Data, including all intellectual property rights therein, 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 Cargo Services, Cargo Equipment, Cargo Web App, or Company Data conveys or grants to you any rights in or related to the Cargo Services, Cargo Equipment, Cargo Web App, or Company Data, except for the limited license granted above. Other than as specifically permitted by the Company in connection with the Cargo Services, you are not permitted to use or reference in any manner Company’s, its Affiliates’, or their respective licensors’ company names, logos, products and service names, trademarks, service marks, trade dress, copyrights or other indicia of ownership, alone and in combination with other letters, punctuation, words, symbols and/or designs (the "Cargo Marks”) for any commercial purposes. You agree that you will not try to register or otherwise use and/or claim ownership in any of the Cargo Marks, alone or in combination with other letters, punctuation, words, symbols and/or designs, or in any confusingly similar mark, name or title, for any goods and services.
6.1 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 Data, Driver IDs, 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.
6.2 Each party acknowledges and agrees that: (a) all Confidential Information shall remain the exclusive property of the disclosing party; (b) 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, service providers, Ridesharing Partners and Brand Partners (collectively "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).
6.3 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. In addition, Company may disclose your location data, User ridership, transaction history and other Transportation Services and/or Cargo Services data and information as provided below.
7.1 Disclosure of Your Information. Subject to applicable law, Company may provide your location data, User ridership and other Transportation Services and/or Cargo Services data and information to the Company’s marketing and retail partners, including Ridesharing Partners and Brand Partners and to others if: (a) there is a complaint, dispute or conflict, including an accident; (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) it is necessary, in Company’s sole discretion, to (1) protect the safety, rights, property or security of Company or any third party; (2) to protect the safety of the public for any reason including the facilitation of insurance claims related to the Cargo Services; (3) to detect, prevent or otherwise address fraud, security or technical issues; (4) 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); (e) 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 Cargo Services; or (f) as part of Company’s agreements with its Ridesharing Partners and Brand Partners. You understand that Company may retain your personal data for legal, regulatory, marketing, safety and other necessary purposes after this Agreement is terminated.
7.2 Company and its Affiliates may collect your personal data during the course of your application for, and provision of, the Cargo Services, or may obtain information about you from third parties. Such information may be stored, processed, transferred, and accessed by Company, third parties, and service providers for business purposes, including for marketing, lead generation, service development and improvement, analytics, industry and market research, and such other purposes consistent with Company’s and its Affiliates’ legitimate business needs. You expressly consent to such use of personal data.
8.1 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 requirements to operate a private passenger vehicle on the public roads 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 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. 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 Company may maintain during the term of this Agreement insurance related to your provision of the Cargo Services as determined by Company in its reasonable discretion. You are required to promptly notify Company of any accidents that occur while providing Cargo Services and to cooperate and provide all necessary information related thereto.
9. Representations and Warranties; Disclaimers
9.1 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; (b) you have not entered into, and during the term will not enter into, any agreement that would prevent you from complying with this Agreement; (c) you will comply with all applicable laws in your performance of this Agreement, including holding and complying with all permits, statutes, ordinances, regulations, licenses, registrations and other governmental authorizations necessary to provide Transportation Services and the Cargo Services using the Vehicles pursuant to this Agreement and; (d) you will not dispense, deliver, or provide good(s), product(s), or sample(s) unless the vehicle is stopped, not in motion, and it is safe to do so.
9.2 Disclaimer of Warranties.
COMPANY PROVIDES, AND YOU ACCEPT, THE CARGO SERVICES, CARGO EQUIPMENT AND USE OF CARGO SOFTWARE AND WEBSITES 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 CARGO SERVICES, CARGO SOFTWARE, OR CARGO WEBSITES WILL BE UNINTERRUPTED OR ERROR FREE.
9.3 No Service Guarantee.
COMPANY DOES NOT GUARANTEE THE AVAILABILITY OR UPTIME OF THE CARGO SERVICES, CARGO SOFTWARE, OR CARGO WEBSITES. YOU ACKNOWLEDGE AND AGREE THAT THE CARGO SERVICES, CARGO SOFTWARE, OR CARGO WEBSITES MAY BE UNAVAILABLE AT ANY TIME AND FOR ANY REASON. FURTHER, THE CARGO SERVICES, CARGO SOFTWARE, AND CARGO WEBSITES 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, DELIVERY FAILURES, OR OTHER DAMAGES, LIABILITIES OR LOSSES RESULTING FROM SUCH PROBLEMS.
You shall indemnify, defend (at Company’s option) and hold harmless Company and its officers, directors, employees, agents, successors and assigns from and against any and all liabilities, expenses (including legal 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 Transportation Services or provision of the Cargo Services. This indemnification provision shall not apply to your breach of any representations regarding your status as an independent contractor.
11. Limits of Liability.
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, compensatory, general, 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 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 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.
12. Term and 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 or deactivate your Driver ID 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 Transportation Services or to operate the Vehicle, or as otherwise set forth in this Agreement.
12.3 Effect of Termination.
Outstanding payment obligations and Sections 1, 2.2(d, e, f, g), 2.3, 2.5, 4.3, 4.4, 5.2, 5.3, 6, 7, 9, 10, 11, 12.3, 13, 14 and 15 shall survive the termination of this Agreement.
13. Relationship of the Parties
13.1 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.
13.2 You have no authority to bind Company or its Affiliates 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 and its Affiliates harmless from and against any claims by any person or entity based on such implied agency or representative relationship.
14. Miscellaneous Terms
In the event Company modifies the terms and conditions of this Agreement at any time, such modifications shall be binding on you upon your continued use and provision of the Cargo Services after receipt of notice of such changes. Company reserves the right to modify any information referenced herein or at hyperlinks from this Agreement from time to time. You hereby acknowledge and agree that, by using and providing the Cargo Services, or using the Cargo Web App you are bound by the then-current version of this Agreement, any future amendments and additions to information referenced at hyperlinks herein, or documents incorporated herein, including with respect to the amounts and terms regarding Driver Partner Payments, which are incorporated herein by reference. Continued use of the Cargo Services or Cargo Web App after any such changes shall constitute your consent to such changes.
14.2 Supplemental Terms.
Supplemental terms may apply to your use of the Cargo 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.
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.
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.
14.5 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.
14.6 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.
Any notice delivered by Company to you under this Agreement will be delivered by email to the email address as listed on your Driver Profile or by posting on the Driver Profile. Any notice delivered by you to Company under this Agreement must be emailed to email@example.com from the email address listed on your Driver Profile or texted to 1 (919) 277 – 9140 from the phone number listed on your Driver Profile.
14.8 Governing Law.
The interpretation of this Agreement shall be governed by and construed in accordance with New York law, without regard to the choice or conflicts of law provisions of any jurisdiction, provided, however, that any arbitration entered into between the Company and you pursuant to Section 15 shall be governed by the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (the “FAA”). 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 Cargo in writing.
Important Notes Regarding this Arbitration Provision:
If you are located in, are based in, have offices in, or do business in a jurisdiction in which this Section is enforceable, the following mandatory arbitration provisions apply to you.
Except as 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.
Unless the law requires otherwise, as determined by the Arbitrator based upon the circumstances presented, you will be required to split the cost of any arbitration with the Company.
IMPORTANT: This Arbitration Provision will require you to resolve any claim that you may have against the Company on an individual basis pursuant to the terms of the Agreement. This provision will preclude you from bringing any class, collective, or representative action against the Company, and also precludes you from participating in or recovering relief under any current or future class, collective, or representative action brought against the Company by someone else. If successful on such claims, you could be awarded money or other relief by an arbitrator (subject to splitting the cost of arbitration as discussed below).
15.1. How This Arbitration Provision Applies.
This Arbitration Provision is governed by the FAA and evidences a transaction involving interstate commerce. This Arbitration Provision applies to any dispute arising out of or related to this Agreement 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.
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. 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.
Such disputes include without limitation disputes arising out of or relating to interpretation or application of this Arbitration Provision, including the enforceability, revocability or validity of the Arbitration Provision or any portion of the Arbitration Provision. All such matters shall be decided by an Arbitrator and not by a court or judge.
This Arbitration Provision also applies, without limitation, to all disputes between You and the Company, as well as all disputes between You and the Company’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, including termination of the relationship.
15.2 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 New York or a retired federal or state judicial officer who presided in New York. 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 Agreement, this Agreement shall govern. Those rules are available here: http://www.jamsadr.com/rules-streamlined-arbitration/.
15.3 Starting the Arbitration.
All claims in arbitration are subject to the same rules, rights, remedies and statutes of limitation that would apply in court. Any demand for arbitration made to the Company shall be provided to 36 East 12th Street, Floor 3, New York, NY 10003. 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.
15.4i. How Arbitration Proceedings Are Conducted.
You and the Company agree to resolve any dispute that is in arbitration 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.
15.5. 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 provides for the award of reasonable attorney fees to the prevailing party). In all cases where required by law, 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, such fee(s) will be apportioned equally between the Parties or as otherwise required by applicable law. However, 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. Any disputes in that regard will be resolved by the Arbitrator as soon as practicable after the Arbitrator is selected, and Company shall bear all of the Arbitrator’s and arbitration fees until such time as the Arbitrator resolves any such dispute.
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. The Arbitrator shall not have the power to commit errors of law or legal reasoning, and the award may be vacated or corrected on appeal to a court of competent jurisdiction for any such error.
15.6. Full and Complete Agreement Related to Formal Resolution of Disputes; Enforcement of This Agreement.
This Arbitration Provision is the full and complete agreement relating to the formal resolution of disputes arising out of this Agreement. In the event any portion of this Arbitration Provision is deemed unenforceable, the remainder of this Arbitration Provision will be enforceable.