TECHNOLOGY SERVICES AGREEMENT
This agreement (this “Agreement”) sets forth the terms and conditions whereby 3Good LLC, a California limited liability company (“3Good”), provides certain technology services to you, a commercial driver. 3Good develops and supports a mobile application, Carbon, which allows you to accept payment from your passengers (“Passenger”). You provide transportation services to your Passengers (“Transportation Services”).
- Term. The term of this Agreement shall commence when you begin use of the Services, until it is terminated with Section 10 (the “Term”).
- Fees. As full consideration for the use of the Services, you shall pay 3Good a seven percent (7%) fee on the total fare charged to your passengers (“Fees”). 3Good, through its vendor, Stripe, or another third party vendor (“Payments Vendor”) automatically deducts the Fees from each transaction that you perform through the Services. Payments Vendor also deducts a processing fee of two and nine-tenths percent (2.9%) automatically from each transaction (“Payments Vendor Fees”). The Fees and Payments Vendor Fees are subject to change at any time upon written notice to you.
- Relationship of the Parties. The parties agree that they have an independent contractor relationship. They further agree that nothing contained in this Agreement shall be deemed or construed as creating an employment relationship, agency relationship, partnership, or joint venture. Neither party has the right or authority to bind the other party. 3Good 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 automobile. You retain the sole right to determine when, where, and for how long you will utilize the Services. With the exception of any signage required by local law or permit/license requirements, 3Good shall have no right to require you to display the Carbon logo, wear a uniform, or engage in any other activity that identifies you with 3Good. You acknowledge that you may be engaged or employed in any other business, trade, profession or other activity while performing under this Agreement.
- Relationship with Passengers. You acknowledge and agree you have a direct business relationship with the Passengers. 3Good is not responsible or liable for the actions or inactions of a Passenger in relation to you, your activities or your automobile. You shall have the sole responsibility for any obligations or liabilities to Passengers or third parties that arise from your provision of Transportation Services. You acknowledge and agree that you are solely responsible for taking such precautions as may be reasonable and proper (including maintaining adequate insurance that meets the requirements of all applicable laws) regarding any acts or omissions of a Passenger or third party. You acknowledge and agree that 3Good may release your contact information to a Passenger upon such Passenger’s reasonable request. You acknowledge and agree that, unless specifically consented to by a Passenger, you may not transport or allow inside your automobile individuals other than a Passenger and any individuals authorized by such Passenger, during the performance of Transportation Services for such Passenger. You acknowledge and agree that all Passengers should be transported directly to their specified destination, as directed by the applicable Passenger, without unauthorized interruption or unauthorized stops.
- Representations and Warranties. You represent and warrant to 3Good that: (a) you have the right to enter into this Agreement, to grant the rights granted herein and to perform fully all of your obligations in this Agreement; (b) your entering into this Agreement with 3Good does not and will not conflict with or result in any breach or default under any other agreement to which you are subject; (c) you have and shall maintain a valid drivers’ license in the jurisdiction where you drive; (d) you have and shall maintain a California Public Utilities Commission license of Charter-Party Carrier (“TCP”) or relevant license and/or permit in your jurisdiction in good standing; (e) your driver record has no points; and (f) you have never been convicted of, or pleaded guilty or nolo contender/non contest to, any crime in any state, the United Stated or its territories, a military court, or a foreign nation. Evidence of a valid drivers’ license and TCP shall be provided upon written request by 3Good. Further, you grant 3Good authorization to check your driver record and criminal records and will cooperate with all requests by 3Good to complete these checks.
- Insurance. During the Term, you shall maintain in force adequate workers’ compensation, automobile insurance, commercial general liability, and other forms of insurance, as customarily maintained by other businesses providing similar services as you, in each case with insurers reasonably acceptable to 3Good, with policy limits sufficient to protect and indemnify 3Good and its affiliates, and each of their managers, officers, directors, agents, employees, subsidiaries, partners, members, and controlling persons, from any losses resulting from you, your agents’, servants’, or employees’ conduct, acts, or omissions. 3Good shall be listed as an additional insured under such policies, and you shall forward certificates of insurance verifying such insurance upon 3Good’s written request, which certificates will indicate that such insurance policies may not be canceled before the expiration of a thirty (30) day notification period and that 3Good will be immediately notified in writing of any such notice of termination.
- Confidentiality. You acknowledge that you will have access to information that is treated as confidential and proprietary by 3Good, including, without limitation, all information of 3Good, its businesses, any existing or prospective clients, supplier, Carbon users, investor, or of any other person or entity that has entrusted information to 3Good in confidence not generally known to the public, in spoken, printed, electronic, or any other form or medium, whether intangible or tangible, relating directly or indirectly to: (i) information believed by 3Good to be a Trade Secret (as defined below) that ultimately does not qualify as such under California law but nonetheless was maintained by 3Good as confidential; (ii) Trade Secrets; (iii) information concerning the nature of 3Good’s business and its manner of operation; (iv) the methods and systems used by 3Good in soliciting, selling, and providing its services and products to its clients; (v) financial and accounting information, such as cost, pricing, billing information, clients’ profiles, financial policies, procedures, revenues, and profit margins; (vi) sales and marketing information, such as sales strategies and programs; (vii) information concerning 3Good’s clients and prospective clients; (viii) information concerning 3Good’s vendors and suppliers; (ix) clients and prospective client lists; (x) inventions; (xi) information concerning 3Good’s business relationships with persons, firms, corporations, and other entities; and (xii) contracts and agreements, including but not limited to this Agreement (collectively, the “Confidential Information”). “Trade Secrets” shall mean any and all Confidential Information that (i) derives independent economic value, actual or potential, from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use; (ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy; and (iii) any and all other information that falls within the meaning of a trade secret as defined under California or Federal law. You agree to treat all Confidential Information as strictly confidential, not to disclose Confidential Information or permit it to be disclosed, in whole or part, to any third party without the prior written consent of 3Good in each instance, and not to use any Confidential Information for any purpose except as required in the performance of the Services. You shall notify 3Good immediately in the event you become aware of any loss or disclosure of any Confidential Information.
a. Either party may terminate this Agreement without cause upon thirty (30) days’ written notice to the other party. In the event of termination pursuant to this Section 11(a), you shall pay any Fees then due and payable for any Transportation Services provided through the Services completed up to and including the date of such termination.
c. Upon termination of this Agreement for any reason, you shall promptly cease using the Services and 3Good may promptly terminate your access to the Services.
d. The terms and conditions of this Section 11(d) and Section 4, Section 5, Section 6, Section 8, Section 10, Section 11(c), Section 12, and Section 13 shall survive the expiration or termination of this Agreement.
- Warranty Disclaimer; Limitation of Liability; General Disclaimers & Releases. THE SERVICES, INCLUDING ANY CONTENT OR INFORMATION CONTAINED WITHIN IT OR ANY SERVICE-RELATED SERVICE, ARE PROVIDED “AS IS,” WITH ALL FAULTS, WITH NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, WARRANTIES THAT THE SERVICE WILL MEET YOUR REQUIREMENTS, WARRANTIES CONCERNING THE AVAILABILITY, ACCURACY, SECURITY, OR INFORMATION CONTENT ON THE SERVICE, WARRANTIES FOR SERVICES OR GOODS RECEIVED THROUGH OR ADVISED ON THE SERVICE, WARRANTIES CONCERNING THE ACCURACY OR RELIABILITY OF THE RESULTS THAT MAY BE OBTAINED THROUGH USE, AND WARRANTIES THAT THE SERVICES WILL BE SECURE OR ERROR-FREE. YOU ASSUME TOTAL RESPONSIBILITY AND RISK FOR YOUR USE OF THE SERVICES, SERVICE-RELATED SERVICES, AND HYPERLINKED SERVICES.
3GOOD, ITS AFFILIATES AND ITS SPONSORS ARE NEITHER RESPONSIBLE NOR LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE, OR OTHER DAMAGES (EVEN IF FORESEEABLE OR IF 3GOOD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT, OR OTHER THEORY, ARISING OUT OF, RELATING TO, OR IN ANY WAY CONNECTED WITH THE SERVICES, THIS AGREEMENT, SERVICE-RELATED SERVICES, CONTENT, OR INFORMATION CONTAINED WITHIN THE SERVICES. YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE SERVICES IS TO STOP USING THE SERVICES.
In addition, to the extent permitted by applicable law, 3Good (including its parent, subsidiaries, and affiliates, and its and their officers, directors, agents and employees) are not liable, and you agree not to hold us responsible, for any damages or losses (including, but not limited to, loss of money, goodwill or reputation, profits, or other intangible losses or any special, indirect, or consequential damages) resulting directly or indirectly from:
- advice received through or advertised in connection with the Services or any links on the Services;
- any transaction or relationship between you and any Passenger;
- the Transportation Services;
- your use of or your inability to use the Services;
- delays or disruptions in the Services;
- services provided by Payments Vendor or any other third party vendor;
- viruses or other malicious software obtained by accessing, or linking to, the Services;
- glitches, bugs, errors, or inaccuracies of any kind in the Services;
- damage to your hardware device from the use of the Services;
- the content, actions, or inactions of third parties;
- a suspension or other action taken with respect to your account or breach of this Agreement or any other 3Good policy;
- any unlawful, harassing, defamatory, abusive, threatening, harmful, vulgar, obscene, sexually explicit or otherwise objectionable conduct or speech of any other party on or through the Services, through the use of the Services, or through any products or services sold, offered, or purchased through the Services;
- any violation of any state or federal laws by you or any other party through the use of the Services or related to any products or services sold, offered, or purchased through the Services;
- any infringement or violation of your rights by any other party, including, but not limited to, intellectual property rights, rights of publicity, or rights of privacy.
Although 3Good attempts to ensure the integrity and accurateness of the Services, it makes no guarantees whatsoever as to the correctness or accuracy of the Services. It is possible that the Services could include inaccuracies or errors, and that unauthorized additions, deletions, and alterations could be made to the Services by third parties. In the event that an inaccuracy arises, please inform 3Good at email@example.com so that it can be corrected. Information contained on the Services may be changed or updated without notice.
If you have a dispute with one or more Passengers or any other third party, you release 3Good (and its affiliates and subsidiaries, and its and their respective officers, directors, employees and agents) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. IN ENTERING INTO THIS RELEASE YOU EXPRESSLY WAIVE ANY PROTECTIONS (WHETHER STATUTORY OR OTHERWISE) THAT WOULD OTHERWISE LIMIT THE COVERAGE OF THIS RELEASE TO INCLUDE ONLY THOSE CLAIMS WHICH YOU MAY KNOW OR SUSPECT TO EXIST IN YOUR FAVOR AT THE TIME OF AGREEING TO THIS RELEASE.
Regardless of the previous paragraphs IN SECTION 12, if 3Good is found to be liable FOR WHATEVER REASON, IN NO EVENT WILL THE COLLECTIVE LIABILITY OF 3good AND ITS SUBSIDIARIES AND AFFILIATES, AND THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS AND DIRECTORS, TO ANY PARTY (REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE) EXCEED Five hundred dollars ($500.00).
Choice of Law. This Agreement are entered into in the State of California and shall be governed by and construed in accordance with the laws of the State of California, exclusive of its choice of law rules. For the sake of clarity, nothing in this Agreement shall affect 3Good’s ability to seek from a court injunctive or equitable relief at any time.
In the event that any of this Agreement are held by a court or other tribunal of competent jurisdiction to be unenforceable, those provisions shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect.
Unless you and 3Good agree otherwise, in the event that the Section 14 below is found not to apply to you or to a particular claim or dispute, you agree that any claim or dispute that has arisen or may arise between you and 3Good must be resolved exclusively by a state or federal court located in Los Angeles County, California. You and 3Good agree to submit to the personal jurisdiction of the courts located within Los Angeles County, California for the purpose of litigating all such claims or disputes.
Dispute Resolution. PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS AND WILL HAVE A SUBSTANTIAL IMPACT ON HOW CLAIMS YOU AND 3GOOD HAVE AGAINST EACH OTHER ARE RESOLVED. You and 3Good agree that any dispute, claim or controversy arising out of or relating to these or previous versions of this Agreement, the breach, termination, enforcement, interpretation or validity thereof or the use of the Services, or any products or services sold, offered, or purchased through the Services (collectively, “Disputes”) will be settled by binding arbitration, rather than in court. Alternatively, each party retains the right to bring an individual action in small claims court, if your claims qualify and so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis. The Federal Arbitration Act governs the interpretation and enforcement of this Section, or, if for any reason the Federal Arbitration Act is inapplicable or held not to require arbitration of a particular claim, then in accordance with the California Arbitration Act. Notwithstanding the foregoing, either party has the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights.
YOU AND 3GOOD AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND 3GOOD AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER RECIPIENTS OF THE SERVICES.
The arbitration will be conducted by the American Arbitration Association (“AAA”) under its rules and procedures. The AAA’s rules are available at www.adr.org or by calling the AAA at 1-800-778-7879. A party who desires to initiate arbitration must provide the other party with a written demand for Arbitration as specified in the AAA Rules. Your written demand for Arbitration shall be sent to:
900 Pacific Avenue
Los Angeles, CA 90291
3Good will send any written demand to you to the physical address 3Good has on file associated with your account. It is your responsibility to keep your physical address up to date. The written demand must include a description of the nature and basis of the claims the party is asserting and the relief sought.
If you and 3Good are unable to resolve the claims described in the written demand within thirty (30) days after the written demand is sent, you or 3Good may initiate arbitration proceedings. A form for initiating arbitration proceedings is available on the AAA’s site at www.adr.org. In addition to filing this form with the AAA in accordance with its rules and procedures, the party initiating the arbitration must mail a copy of the completed form to the opposing party. You may send a copy to 3Good at the address provided above. In the event 3Good initiates arbitration against you, it will send a copy of the completed form to the physical address 3Good has on file associated with your account. Any settlement offer made by you or 3Good shall not be disclosed to the arbitrator. The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of California and will be selected by the parties from the AAA’s roster of commercial dispute arbitrators. If the parties are unable to agree upon an arbitrator within thirty (30) days of delivery of the written demand to arbitrate, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
Unless you and 3Good otherwise agree, the arbitration will be conducted in the Los Angeles County, California. If the value of the relief sought is Ten Thousand Dollars ($10,000) or less, you or 3Good may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on you and 3Good subject to the arbitrator’s discretion to require an in-person hearing, if the circumstances warrant. In cases where an in-person hearing is held, you and/or 3Good may attend by telephone, unless the arbitrator requires otherwise.
The arbitrator will decide the substance of all claims in accordance with applicable law, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. The arbitrator shall not be bound by rulings in prior arbitrations involving different users, but is bound by rulings in prior arbitrations involving the same 3Good user to the extent required by applicable law. The arbitrator’s award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules, unless otherwise stated in this Section or required by law. Your responsibility to pay any AAA filing, administrative, and arbitrator fees will be solely as set forth in the AAA Rules. In the event the arbitrator determines the claim(s) you assert in the arbitration to be frivolous, you agree to reimburse 3Good for all fees associated with the arbitration paid by 3Good on your behalf that you otherwise would be obligated to pay under the AAA’s rules. 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).
With the exception of any of the provisions in Section prohibiting class and representative actions and non-individualized relief, if an arbitrator or court decides that any part of this Section is invalid or unenforceable, the other parts of this Section shall still apply. If an arbitrator or court decides that any of the provisions in Section prohibiting class and representative actions and non-individualized relief is invalid or unenforceable, then the entirety of this Section 14, Dispute Resolution, shall be null and void. The remainder of this Agreement will continue to apply.
If 3Good changes this Section after the date you first accepted this Agreement (or accepted any subsequent changes to this Agreement), you may reject any such change by providing 3Good written notice of such rejection by mail or hand delivery to: 3Good LLC Attn: Arbitration Opt-Out, 900 Pacific Avenue, Los Angeles, CA 90291, within thirty (30) days of the date such change became effective, as indicated above. In order to be effective, the notice must include your full name and clearly indicate your intent to reject changes to this Section. By rejecting changes, you are agreeing that you will arbitrate any Dispute between you and 3Good in accordance with the provisions of this Section as of the date you first accepted this Agreement (or accepted any subsequent changes to this Agreement).
Miscellaneous. This Agreement contains all the understandings and representations between the parties pertaining to the subject matter hereof and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. This Agreement, and all policies incorporated herein by reference, constitute the entire agreement between 3Good and you pertaining to the subject matter of this agreement. In its sole discretion, 3Good may modify this Agreement. Updated or additional terms will be effective immediately upon notice, either by posting on the Services so that they are accessible via a link in your account or by notification by e-mail. It is your responsibility to review this Agreement and the Services from time to time for any updated or additional terms. Unless changes are made to the arbitration provisions in Section 14, you acknowledge and agree that modification of this Agreement does not create a renewed opportunity to opt out of arbitration
Any delay or failure on the part of 3Good to exercise or enforce any rights under this Agreement to which 3Good may be entitled shall not, in any event, be construed as a waiver of the right and privilege to do so at any subsequent time. The section headings used herein are for convenience only and shall not be given any legal import.
If you create or use an account on behalf of a business entity, you represent that you are authorized to act on behalf of such business and bind the business to this Agreement. Such account is owned and controlled by the business entity.
You may not assign this Agreement or assign any rights or delegate any obligations hereunder, in whole or in part, without 3Good’s prior written consent. Any such purported assignment or delegation by you without the appropriate prior written consent will be null and void and of no force and effect. 3Good may assign this Agreement or any rights hereunder without your consent and without notice. Except as expressly set forth herein, nothing expressed or referred to in this Agreement will be construed to give any person or entity other than the parties any legal or equitable right, remedy, or claim with respect to this Agreement.
Any notice delivered by 3Good to you under this Agreement will be delivered by email to the email address associated with your account. It is your responsibility to ensure that your email address is correct and up-to-date.