Last Modified: [January 2018]
Effective Date: [January 2018]
1.1. Introduction. This MoveUP driver Agreement (this “Agreement”) is an agreement between you (referred to in this Agreement as “you” or “your”) and Unified Potential, Inc., a Virginia non-stock corporation (referred to in this Agreement as “Unified Potential”, “UP”, “we”, “us”, or “our”), the owner and operator of the MoveUP website located at www.moveuplynchburg.org (the “MoveUP Website”), the MoveUP Driver Services (as defined below), and the MoveUP software and mobile applications (the “MoveUP Apps”). The MoveUP Website and the MoveUP Apps are collectively referred to as the “MoveUP System”, and the MoveUP System, the MoveUP Driver Services, and all related systems and services provided by Unified Potential are referred to collectively as the “MoveUP Services.” Through the MoveUP Driver Services, we provide lead generation services to independent drivers that enable them to seek, receive, and fulfill requests for Transportation Services (as defined below) from other users of the MoveUP Services. The MoveUP Services do not include transportation services, taxi services, ride services, or products or services offered or provided (i) by any third parties that may advertise on the MoveUP Website or (ii) by you or other Drivers (as defined below). You agree to read this Agreement carefully.
1.2. Binding Contract. You acknowledge that this Agreement is a legally binding contract between you and Unified Potential and that it governs your access to and use of the MoveUP Services and applies to all Transportation Services (as defined below) that you accept or schedule through the MoveUP System. In this Agreement, you and Unified Potential are sometimes referred to individually as a “party” and collectively as the “parties”, and “User” (and “user”, collectively “Users” or “users”) refers to a person who accesses or uses the MoveUP Services. The parties may terminate this Agreement pursuant to the provisions of Section 21 below.
1.3. Important Provisions. This Agreement includes important provisions affecting your legal rights and obligations, including, for example, a disclaimer of warranties and limitation of liability by Unified Potential (see Section 14 below), dispute resolution provisions that include a waiver of the right to a jury, a waiver of the right to participate in a class action or similar proceeding, a limitation of the period of time for bringing a claim against us, and an agreement that any court proceedings will take place only in the City of Lynchburg, Virginia, United States (see Section 16 below), and an obligation for you to pay any expenses and liabilities (such as damages, costs, or legal claims) that the UP Parties suffer as a result of your violation of any of the provisions of this Agreement, your use of the MoveUP Services, your provision of the Transportation Services, and other actions by you or any of your Affiliates, employees, or agents (see Section 13 below). The previous examples are not comprehensive, and you are responsible for reading and agreeing to all of the provisions of this Agreement as a condition of your access to and use of the MoveUP Services.
3. Modification. As technology changes and as our business grows and develops, we may modify this Agreement and the Policies from time to time. When we modify this Agreement or the Policies, we will give you notice by posting the amended Agreement or Policies on the MoveUP Website or in the MoveUP Apps, and, if the changes meaningfully affect your rights or obligations, we may give you notice by e-mail. The amended Agreement and Policies will include an effective date, and they will be effective on that date. However, any changes to the governing law or dispute resolution provisions set forth in Sections 15 and 16 will not apply to any disputes for which we and you have received actual notice on before such effective date. If you continue to access or use the MoveUP Services after this Agreement or the Policies are amended, you agree to be bound by the revised Agreement and Policies. If you do not agree with the updated Agreement and Policies, you agree that you will promptly (1) discontinue your use of the MoveUP Services, and (2) contact us to request that your Driver Account be closed. You can access historical versions of this Agreement and the Policies at: [www.moveuplynchburg.org/___].
4. Definitions. In addition to terms defined in other parts of this Agreement, as used in this Agreement:
4.1. “Affiliate” (collectively, “Affiliates”) means, with respect to a person, any other person directly or indirectly controlling, controlled by or under common control with the subject person.
4.2. “Cancellation Fee” (collectively, “Cancellation Fees”) means a fee of [$____] plus any applicable taxes.
4.3. “Completed Ride” (collectively, “Completed Rides”) means a Scheduled Ride that has been Marked Complete (as defined below) by the applicable user or Driver.
4.4. “Confidential Information” means any information that is treated as proprietary or confidential by Unified Potential, including, without limitation, intellectual property, trade secrets, technology, information pertaining to business operations and strategies, and information pertaining to Users, pricing, and marketing. Confidential Information does not include information that: (a) is already known to you without restriction on use or disclosure prior to receipt of such information from Unified Potential; (b) is or becomes generally known by the public other than by breach of this Agreement by, or other wrongful act of, you or your Affiliates, employees, or agents; (c) is developed by you independently of, and without reference to, any Confidential Information of Unified Potential; or (d) is received by you from a third party who is not under any obligation to maintain the confidentiality of such information.
4.5. “Driver” (collectively, “Drivers”) means you or any other person who applies for or creates a Driver Account (as defined below), enters into this MoveUP Driver Agreement with Unified Potential, or otherwise uses the MoveUP Services to offer transportation services, taxi services, ride services, or any related products or services to Users.
4.6. “Driver Fee” means a Driver’s fee, calculated based on the applicable Driver Fee Schedule, for a Completed Ride.
4.7. “Driver Fee Schedule” means a Driver’s published fee schedule for providing Transportation Services.
4.8. “Equipment” means all motor vehicles, infant and child car seats and booster seats, and all other equipment, tools, devices, and materials used in connection with the performance of the Transportation Services.
4.9. “Governmental Authorizations” means all licenses, permits, permissions, registrations, certifications or other authorizations required under all applicable laws.
4.10. “Mark Complete”, “Marked Complete”, or “Marking Complete” mean to report through the MoveUP System that a Scheduled Ride has been completed.
4.11. “MoveUP Driver Services” means Unified Potential’s lead generation services that enable Drivers to seek, receive, and fulfill requests for Transportation Services (as defined below) from other Users of the MoveUP Services, and Unified Potential’s services as a Driver’s limited payment collection agent to collect payments on behalf of Drivers from Booking Users.
4.12. “Offered Transportation Services” means the Transportation Services offered by a Driver through the MoveUP System.
4.13. “Participants” (each, a “Participant”) means the Booking User and each individual in the Ride Group.
4.14. “Person” (or “person”) means any individual, corporation, company, partnership, association, trust, unincorporated organization, court or government or political subdivision or agency thereof, any other business entity or legal entity, and any legal person.
4.15. “Ride Group” a Booking User and each individual who is invited or authorized by the Booking User to attend or participate in a Scheduled Ride.
4.16. “Ride Request” (collectively, “Ride Requests”) means a request by a User (each, a “Booking User”, collectively, “Booking Users”) to schedule Transportation Services with a Driver.
4.17. “Scheduled Ride” (collectively, “Scheduled Rides”) means a Ride Request that has been accepted by a Driver.
4.18. “Transportation Services” means transportation services, taxi services, ride services, and any related products or services, offered or provided by a Driver.
4.19. “UP Parties” (each, a “UP Party”) means Unified Potential, its Affiliates, and the officers, directors, shareholders, members, managers, employees, attorneys, and agents of Unified Potential or its Affiliates.
4.20. “User Account” means a User Account as defined in the MoveUP User Agreement located at [www.moveuplynchburg.org/move-up-user_agreement.html] (the “MoveUP User Agreement”).
5. Your Driver Account. In order to use the MoveUP Driver Services, you must register for and maintain an active MoveUP Driver Account (a “Driver Account”) and you must comply with all of the requirements of our Driver Eligibility Policy (located at: [www.moveuplynchburg.org/move-up-driver-eligibility-policy.html]). You must be at least 18 years old to obtain a Driver Account. The Driver Account registration process requires you to submit to us certain personal information, such as your name, photo, address, e-mail address, phone number, date of birth, driver’s license number, vehicle information and license plate information, and other information. Before we collect any payments on your behalf, you may be required to provide us certain tax payer information, such as your Social Security number. As used in this Agreement, your “Account Information” means all information associated with your Driver Account, including your Driver Profile (as defined below) and any information that you provide to us in connection with your Driver Account. You agree to update your Account Information, as necessary, to ensure that it remains current, accurate, and complete. You agree that you will maintain in your Driver Account a current and accurate photograph of yourself that has been taken within the past 24 months, and you agree that you will update your photo in your Driver Account any time there is a significant change you in your appearance. You authorize us to verify your Account Information at any time. If any of your Account Information is untrue, inaccurate, incomplete, or not current, we retain the right, in our sole discretion, to suspend or terminate your Driver Account and your access to the MoveUP Services and to cancel any of your Scheduled Rides. You will not access or use, or attempt to access or use, any other person’s Driver Account or User Account. Unless otherwise expressly permitted by us in writing, you will only register for one Driver Account, except that you may have both one Driver Account and one User Account.
6. Using the MoveUP Services.
6.1. Permission to Use the MoveUP Services. Subject to your compliance with this Agreement and the Policies, we grant you permission to access and use the MoveUP Services for your commercial purposes in connection with your provision of your Transportation Services. If you violate this Agreement or the Policies, your permission to use the MoveUP Services will automatically terminate. Your permission to access and use the MoveUP Services will also terminate automatically if your Driver Account is suspended, closed, or deleted. Your permission to access and use the MoveUP Services is personal, non-exclusive, non-assignable, non-sublicensable, and may be limited or revoked by us at any time. We reserve the right, in our sole discretion, to refuse service and/or to suspend or terminate your Driver Account.
6.2. Your Responsibilities. You are responsible for maintaining the confidentiality of the login credentials (such as password and e-mail address, phone number, or username) used to access your Driver Account (your “Login Credentials”). You acknowledge and agree that you are responsible for any activities that occur through your Driver Account, whether or not authorized by you. You agree to immediately notify us of any security breach associated with your Login Credentials or your Driver Account and of any unauthorized use of your Driver Account. We will not be liable for your losses caused by any unauthorized use of your Driver Account, and you acknowledge and agree that you may be liable for the losses of the UP Parties or others due to such unauthorized use. You will not authorize third parties to access or use your Driver Account, and you will not assign or otherwise transfer your Driver Account to any other person. You will only use the MoveUP Services in compliance with all applicable laws and in accordance with any applicable Governmental Authorizations. You must not use the MoveUP Services in any manner that causes nuisance, annoyance, inconvenience, or property damage to a User or any other person.
6.3. Restrictions. You agree that you will not engage in any of the following activities or permit or allow any other person to do so: (i) remove any copyright, trademark, or other proprietary notices from any portion of the MoveUP Services; (ii) reproduce, modify, prepare derivative works based upon, distribute, license, lease, sell, resell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the MoveUP Services except as expressly permitted by us; (iii) decompile, reverse engineer, or disassemble the MoveUP Services; (iv) link to, mirror, or frame any portion of the MoveUP Services; (v) create or launch any programs or scripts for the purpose of scraping, indexing, surveying, or otherwise data mining any portion of the MoveUP Services or unduly burdening or hindering the operation and/or functionality of any aspect of the MoveUP Services; or (vi) attempt to gain unauthorized access to or impair any aspect of the MoveUP Services or its related systems or networks.
6.5. Using the MoveUP Driver Services. You will promptly create a profile (your “Driver Profile”) using the MoveUP System. Your Driver Profile will include, among other things, detailed information about your Offered Transportation Services and your Driver Fee Schedule for such Transportation Services. You agree to keep your Driver Profile current and accurate at all times. Ride Requests may be delivered to you through the MoveUP System or sent to you via SMS. You agree to communicate acceptance or rejection of each Ride Request through the MoveUP System. You must promptly respond to all Ride Requests after the Ride Request is delivered or sent to you, and if you fail to accept a Ride Request within 60 seconds after the Ride Request is delivered or sent to you, it will be automatically rejected. You agree that you will honor and provide your Offered Transportation Services for all Scheduled Rides in accordance with your Driver Fee Schedule.
6.6. Relationship with Users. Your acceptance of a Ride Request creates a direct business relationship between you and the Booking User and between you and each Participant. You acknowledge and agree that we are not responsible or liable for your Transportation Services, the Equipment, or the actions or inactions of you, the Booking User, the Participants, or any user or other person. You will have the sole responsibility for any obligations or liabilities to users, Participants, or third parties that arise from your provision of Transportation Services. You are solely responsible for taking such precautions as may be reasonable and proper, including maintaining adequate insurance, regarding any acts or omissions of a user, a Participant, or a third party in connection with the Transportation Services. You acknowledge and agree that we may provide certain information about you to our Users, including your name, contact information, photo, business address, vehicle information, license plate number, and your Driver Profile. You agree that you will not contact any User or use or disclose any User’s personal information except to the extent necessary to perform the Transportation Services.
6.7.1. You agree: (i) not to disclose or otherwise make available the Confidential Information to any third party without our prior written consent; provided, however, that you may disclose the Confidential Information to your employees, agents, and legal advisors who have a legitimate need to know such Confidential Information, who have been apprised of this restriction, and who are themselves bound by contractual or legal nondisclosure obligations at least as restrictive as those set forth in this Section 6.7; (ii) to use the Confidential Information only for the purposes of performing your obligations under this Agreement; and (iii) to promptly notify us in the event you become aware of any loss, disclosure, or unauthorized use of any of the Confidential Information. You will be responsible and liable for any unauthorized use or disclosure of the Confidential Information by any person to whom you disclose the Confidential Information. Without limiting any other remedies available to us, we will be entitled to seek injunctive relief in the event you breach this Section 6.7.
6.7.2. If you become legally compelled to disclose any Confidential Information, you will provide: (i) prompt written notice to us of such requirement so that we may seek a protective order or other remedy; and (ii) reasonable assistance, at our expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If, after providing such notice and assistance as required herein, you remain required by applicable law to disclose any Confidential Information, you will disclose no more than that portion of the Confidential Information which you are legally required to disclose.
6.7.3. Upon termination of this Agreement, you will (i) return to us all documents and tangible materials (and any copies) containing, reflecting, incorporating or based on the Confidential Information; (ii) permanently erase all of the Confidential Information from his computer systems; and (iii) certify in writing to us that you have complied with the requirements of this Section 6.7.
6.7.4. Upon the expiration or termination of this Agreement, or at any time upon our request, you will promptly deliver to us (or, at our option, either destroy or, in the case of electronic or digital media or internet services, securely delete or erase) all records, files, notes, other written, printed, or tangible materials, and electronic or digital media (including e-mail, cloud storage, and other internet services) in the possession or control of you (or any person to whom you disclosed the Confidential Information), embodying or containing the Confidential Information. Thereafter, the Confidential Information will not be used or retained in any form by you or any person to whom you disclosed the Confidential Information. If a document or thing embodying Confidential Information, in whole or in part, is not capable of being returned, you will destroy (or securely delete or erase) such document or thing in a manner that prevents reconstruction. Upon our request, you will certify to us in writing that you have complied with the requirements of this Section 6.7.4.
7. Your Transportation Services.
7.1. Generally. You will provide your Transportation Services in a professional manner, consistent with the highest generally accepted standards in the industry, and in compliance with all applicable laws. You will, at all times, comply with all applicable laws and maintain and comply with all Governmental Authorizations necessary to provide your Transportation Services pursuant to this Agreement. You will provide us with copies of all Governmental Authorizations before providing any Transportation Services, as such Governmental Authorizations are renewed, and promptly upon our reasonable request. You represent and warrant that you possess the knowledge, skill, experience, and training necessary to provide your Transportation Services in accordance with this Agreement.
7.2. Equipment. You will, at your own expense, provide all Equipment necessary to perform your Transportation Services. All Equipment must: (a) be owned or leased and properly in your possession; (b) be maintained in good operating condition, consistent with industry standards; (c) not be expired or subject to recall issued by the manufacturer, (d) be registered or licensed as required under applicable law; and (e) be suitable for performing your Transportation Services in accordance with this Agreement.
7.3.1. You understand and agree that Unified Potential does not offer or provide any form of insurance and that Unified Potential does not, and will not, provide you (or any other person) with any insurance coverage for liability, damages, or losses of any kind (whether incurred by you or others) arising out of your provision of Transportation Services, your use of the MoveUP Services, or any of your acts or omissions. You further acknowledge and agree that you are solely responsible for obtaining and maintaining appropriate insurance coverage to protect yourself, Participants to whom you provide your Transportation Services, and third parties who may suffer damages, harm (including personal injury and death), or losses arising out of your Transportation Services.
7.3.2. We may, from time to time, require you to carry specific insurance policies as specified in the Driver Eligibility Policy, and you agree that you will, at all times, carry and maintain any such insurance policies specified in the Driver Eligibility Policy.
7.3.3. The insurance provisions of this Agreement, including any insurance requirements specified in the Driver Eligibility Policy, are not intended to diminish or limit any of your indemnification obligations as set forth in this Agreement. The provisions of this Section 7.3 will continue to apply even if you stop using the MoveUP Services and will survive the closing, deletion, expiration, or termination of your Driver Account or this Agreement.
8. Ratings and Reviews.
8.1. Reviews by Booking Users. For each Completed Ride, the MoveUP Services may enable the Booking User to submit a rating, review, or comments (collectively, a “Driver Rating”) of and about you, your Transportation Services, and the Completed Ride. You understand and agree that you are prohibited from offering or providing any discounts, compensation, reductions or waivers of your Driver Fee, or free products or services to Users in exchange for providing a favorable Driver Rating. Each Driver Rating will be attributed to the User who submitted it and will be viewable by all Users of the MoveUP Services. We will have the right to use, share, and display each Driver Rating in any manner in connection with the business of Unified Potential, without any obligation to provide an accounting or compensation to you.
8.2. Minimum Average Ratings. You must maintain an average Driver Rating that exceeds the minimum average acceptable Driver Rating, if any, that we may establish from time to time. If your average Driver Rating falls below the minimum average Driver Rating, we will notify you and may provide you, in its sole discretion, a limited period of time to raise your average Driver Rating above the minimum average Driver Rating. If you do not increase your average Driver Rating above the minimum average Driver Rating within the time period allowed, if any, we reserve the right to terminate this Agreement.
9. User Content.
9.1. Generally. As used in this Agreement, “User Content” means all information associated with a User Account or a Driver Account, and all information and content (including without limitation, text, photos, ratings, reviews, graphics, audio, video, and other materials) that a User or a Driver uploads, posts, sends, submits, transmits, or otherwise transfers to or through the MoveUP Services. You acknowledge and agree that we do not prescreen User Content and that we are not responsible for the content of any User Content, and we make no guarantees as to the validity, accuracy, or legal status of any User Content. Nevertheless, we may at any time, with or without notice to you, block, interrupt, delete, or otherwise remove, disable or restrict access to, or refuse to display or transmit any User Content.
9.4. Third Party Rights. You represent and warrant to the UP Parties: (1) that you have the right (and have obtained any and all necessary permissions, consents, and authorizations) to grant us the Content License and to grant all other rights and licenses granted in this Agreement, and (2) that the use of your User Content and the exercise of the Content License by the UP Parties (and their sublicensees) will not violate or infringe the Intellectual Property Rights (as defined below) or other rights of any person. In addition, you represent and warrant to the UP Parties: (a) that none of your User Content will contain third party copyrighted material or material that is subject to other third party Intellectual Property Rights unless you have written permission from the rightful owner of the materials (or you are otherwise legally entitled) to upload, post, send, submit, transmit, or otherwise transfer such materials as part of your User Content, to grant us the Content License, and to grant all other rights and licenses granted in this Agreement; (b) that none of the User Content is false, slanderous, libelous, or in any way defamatory; and (c) that you have the written consent, release, and/or permission of each and every identifiable person in your User Content to use (and to grant us, as part of the Content License, the right to use) the person’s name, image, photo, portrait, voice, sound-alike, likeness, and persona in connection with your User Content.
9.5. Network Access and Devices. It is your responsibility to obtain and maintain the mobile phone, e-mail, and internet access necessary to use the MoveUP Services and to obtain and update compatible devices necessary to access and use the MoveUP Services. We do not guarantee that the MoveUP Services will function on any particular hardware or devices. Your internet service provider or mobile network’s data, phone call, and messaging rates and fees may apply when you access or use the MoveUP Services. The MoveUP Services may be subject to malfunctions and delays inherent in the use of the internet and electronic communications.
10. Financial Matters.
10.2. Fee for Transportation Services. Upon the completion or end of a Scheduled Ride, either you or the Booking User must report to us that the Scheduled Ride has been completed by using the Mark Complete interface in the MoveUP System. For each Completed Ride for which you provided your Transportation Services, you will be entitled to charge a Driver Fee calculated based on your Driver Fee Schedule as displayed in your Driver Profile when the Ride Request was initiated by the Booking User. You may choose to waive or reduce the Driver Fee for any Completed Ride. When a Scheduled Ride is Marked Complete, we will act as your limited payment collection agent and charge the Booking User, on your behalf, the applicable Driver Fee (less any reductions you choose to make) plus any applicable taxes we are required to collect from the Booking User on your behalf under applicable law (collectively, the “Ride Charge”) and cause the Ride Charge to be paid to you using your Payment Information. You will not charge Booking Users (or other Participants) any monetary amounts except as otherwise provided in this Agreement.
10.3. Cancellation. If a Booking User cancels a Scheduled Ride, we may, acting in the capacity of your limited payment collection agent, charge the Booking User, on your behalf, a Cancellation Fee. We will pay to you any such Cancellation Fee that we have collected and received on your behalf using your Payment Information.
10.4. Donations to the MoveUP Transportation Fund. Unified Potential controls and administers a non-profit fund (the “MoveUP Transportation Fund”) for various purposes, including providing and improving transportation options for people in the Lynchburg, Virginia area. We encourage you to make voluntary donations (each, a “MoveUP Fund Donation”) to the MoveUP Transportation Fund to support those efforts. To make it easier for you to donate, the MoveUP System will, when the features are implemented, provide two ways for you to make MoveUP Fund Donations: (1) the MoveUP System will allow you to choose whether to operate in Paid mode (“Paid Mode”) or Volunteer mode (“Volunteer Mode”), and (2) for each Completed Ride, you will be able to choose through the MoveUP System to donate the applicable Driver Fee (a “Driver Fee Donation”) as a MoveUP Fund Donation. When operating in Volunteer Mode or when you choose to make a Driver Fee Donation, we will act as your limited payment collection agent and charge the Booking User, on your behalf, the applicable Ride Charge and (a) cause the Driver Fee to be donated, on your behalf, as a MoveUP Fund Donation using your Payment Information, and (b) cause any applicable taxes we are required to collect from the Booking User on your behalf to be paid to you using your Payment Information. We will send you receipts by e-mail for all MoveUP Fund Donations you make through the MoveUP System. If you believe there is an error in any receipt that we issue, you must submit any corrections to us in writing within five (5) days after we send you the receipt. Unless you send such a notice, we will not be liable for any mistakes in or corrections to the receipt or for recalculation of the payments reflected thereon. At this time, donations and other contributions to the MoveUP Transportation Fund are not tax-deductible.
10.5. Equipment Damage. We will have no responsibility or liability for any wear and tear, damage, loss, or theft of Equipment. If a Participant’s use of your Equipment results in the damage (in excess of normal wear and tear) or loss of your Equipment (collectively, “Equipment Damage”), you may submit to us, via e-mail or the MoveUP System, a detailed report of such damage or loss (an “Equipment Damage Report”) that identifies in detail the Equipment that was damaged or lost and the reasonable costs to repair or replace such Equipment (and, if applicable, such lesser amount that you intend to charge to the Booking User) (the “Cleaning Costs”). We will investigate and verify each such Equipment Damage Report, and you will promptly provide any additional evidence, documentation, or receipts that we request related thereto. If we determine, in our reasonable discretion, that a Participant is responsible for such Equipment Damage, then we will act in the capacity of your limited payment collection agent and charge the Booking User, on your behalf, the Cleaning Costs (or such lesser amount as we may determine is appropriate), plus any taxes we are required to collect from the Booking User under applicable law (collectively, the “Cleaning Charges”), and cause the Cleaning Charges to be paid to you using your Payment Information. If the Cleaning Charges are less than the Cleaning Costs, you may, in your sole discretion, undertake to collect the difference thereof from the Booking User through any means, other than through the MoveUP Services, permitted by applicable law.
10.6. Receipts. The MoveUP Driver Services will provide you a system for the delivery of receipts to Booking Users for your Transportation Services. We will, on your behalf, send the Booking User a receipt by e-mail for any Ride Charge, the Cancellation Fee, or Cleaning Charges paid by the Booking User to you through the MoveUP Services. Copies of such receipts will also be provided to you via e-mail or the MoveUP System. Any corrections to a Booking User’s receipt must be submitted to us in writing within five (5) days after the completion of such Transportation Services. Absent such a notice, we will not be liable for any mistakes in or corrections to the receipt or for recalculation of the charges reflected thereon.
10.7. Payment Processing and Charge Backs. We are not responsible for any failure to collect any Ride Charge, Cancellation Fee, or Cleaning Charges (each of the foregoing, a “User Payment”) from a Booking User that are caused by or arise out of (1) invalid or expired payment information provided to us by the Booking User, (2) the amount of such User Payment exceeding the Booking User’s credit limit or available funds, (3) any such User Payment being declined by a credit card issuer, bank, or other payment provider or processor, or (4) any other matter beyond our reasonable control. In the event of a charge back by a credit card issuer, or any similar action by a payment provider or processor for any User Payment.
11. Intellectual Property Rights.
11.1. Generally. You acknowledge and agree that, except for User Content and except as otherwise expressly stated in this Agreement, Unified Potential (or its licensors) own all Intellectual Property Rights in and to all content and materials displayed, transmitted, performed, included, or provided by us on or through the MoveUP Services, including without limitation all text, titles, photos, graphics, logos, designs, audio and video transmissions and recordings, and other content (collectively, “MoveUP Materials”). Except as otherwise expressly provided in this Agreement, we retain all rights in and to the MoveUP Services and the MoveUP Materials. As used in this Agreement, “Intellectual Property Rights” means intellectual property rights arising from or in respect of the following, whether protected, created or arising under the laws of the United States or any other jurisdiction: (i) fictional business names, trade names, company and corporate names, trademarks and service marks (whether registered or unregistered), logos, Internet domain names, and trade dress rights, together with the goodwill associated with any of the foregoing (collectively, “Marks”); (ii) inventions, patent applications, and patents issued therefrom in the United States and in all other countries, including all continuations, divisionals, continuations-in-part, inventions registrations, re-examinations, registrations, renewals, utility models, reissues and the like corresponding thereto (collectively, “Patents”); (iii) copyrights and registrations and applications therefor (collectively, “Copyrights”); (iv) proprietary and confidential information which constitute trade secrets, such as proprietary and confidential know-how, inventions, discoveries, concepts, ideas, methods, processes, designs, formulae, technical data, drawings, specifications, and data bases in each case excluding any of the foregoing to the extent the rights therein comprise or are protected by Copyrights or Patents (collectively, “Trade Secrets”); (v) publicity rights, including without limitation the right to use a Person’s name, image, photo, portrait, voice, sound-alike, likeness, and persona for advertising, marketing, promotional, trade, business, and commercial purposes (collectively, “Publicity Rights”); and (vi) moral rights and privacy rights (collectively, “Other IP Rights”).
11.2. Our Trademarks. The names “Unified Potential” and “MoveUP” and the graphics, icons, logos, service names, designs, and layouts associated with the MoveUP Services are the Marks of Unified Potential in the United States and/or other countries. You acknowledge and agree that you will not use any of our Marks (including as part of other Marks and/or Internet domain names) in connection with any product or service in any manner that is likely to cause confusion or dilution of our Marks. All other Marks are the property of the respective owners.
11.3. Feedback. We encourage you to send us messages, feedback, or data, including, for example, ideas, comments, suggestions, or questions about the MoveUP Services or any other product or service (collectively, “Feedback”). You agree not to send us any information or ideas that are sensitive or confidential, and you agree that any Feedback we receive from you will not be considered confidential. You grant us a worldwide, royalty-free, exclusive, transferable, sublicensable, perpetual, and irrevocable license to record, use, practice, copy, modify, adapt, create derivative works of, store, host, publish, publicly perform, publicly display, distribute, communicate, and transmit your Feedback in any and all media or distribution methods (now known or later developed), and to exercise all Intellectual Property Rights in and to your Feedback. We will be entitled to use the Feedback for any commercial or other purpose whatsoever (including, for example, developing, improving, producing, providing, or marketing products and services) without compensation to you or any other person sending the Feedback, and we will not be under any obligation to tell you if and how we use the Feedback.
11.4. The provisions of this Section 11 will continue to apply even if you stop using the MoveUP Services and will survive the closing, deletion, expiration, or termination of your Driver Account or this Agreement.
12. Claims of Intellectual Property Infringement.
12.1. Generally. We respect the Intellectual Property Rights of others, and we require each of our users to do the same. We take claims of infringement of Intellectual Property Rights seriously, and we reserve the right, in our sole discretion, to block, interrupt, delete, or otherwise remove, disable or restrict access to, or refuse to display or transmit (collectively, “Remove” or “Removing”) any User Content. In appropriate cases and in our sole discretion, we may Remove User Content if properly notified that such User Content infringes a third party’s Intellectual Property Rights. It is our policy, in appropriate circumstances, to disable and/or terminate the User Account or Driver Account of users who are repeat infringers. Without limiting any of our rights to take other action described in this Agreement, including without limitation, immediately Removing or modifying Infringing Content without notice, we will, within a reasonable period of time following our receipt in writing of a final, non-appealable court order finding that specific User Content infringes a third party’s Intellectual Property Rights (“Infringing Content”), Remove or modify such Infringing Content in the jurisdictions to which such order applies.
12.2. Reporting Claims of Copyright Infringement.
12.2.1. Digital Millennium Copyright Act (DMCA) Notice Procedures. We will respond to notices of alleged copyright infringement that comply with applicable law. If you believe any materials accessible on or through the MoveUP Services infringe your copyright, you may request removal of those materials (or access thereto) from the MoveUP Services by submitting written notification to the Unified Potential Intellectual Property Agent (designated below). In accordance with the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act (17 U.S.C. § 512) (the “DMCA”), the written notice (the “DMCA Notice”) must include substantially the following:
• Your physical or electronic signature;
• Identification of the copyrighted work you believe to have been infringed or, if the claim involves multiple works on the MoveUP Services, a representative list of such works;
• Identification of the material you believe to be infringing in a sufficiently precise manner to allow us to locate that material;
• Adequate information by which we can contact you (such as your name, mailing address, telephone number, and, if available, an e-mail address);
• A statement that you have a good faith belief that use of the copyrighted material is not authorized by the copyright owner, its agent or the law;
• A statement that the information in the written notice is accurate; and
• A statement, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.
Unified Potential’s designated Intellectual Property Agent to receive DMCA Notices is:
Andrew B. Stockment
530 East Main Street
P.O. Box 2057
Charlottesville, VA 22902
If you fail to comply with all of the requirements of Section 512(c)(3) of the DMCA, your DMCA Notice may not be effective.
Please be aware that if you knowingly materially misrepresent that material or activity on the MoveUP Services is infringing your copyright, you may be held liable for damages (including costs and attorneys’ fees) under Section 512(f) of the DMCA.
12.2.2. DMCA Counter-Notification Procedures. If you believe that your User Content was removed or access to it was disabled by mistake or misidentification, you may file a counter-notification with Unified Potential (a “DMCA Counter-Notice”) by submitting written notification to the Unified Potential Intellectual Property Agent (identified above). Pursuant to the DMCA, the DMCA Counter-Notice must include substantially the following:
• Your physical or electronic signature;
• Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access disabled;
• A statement under penalty of perjury by you that you have a good faith belief that the material identified above was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled;
• Your name, address, and telephone number (and if you wish to facilitate our ability to contact you, your e-mail address); and
• A statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located (or if your address is outside of the United States, for any judicial district in which Unified Potential may be found), and that you will accept service of process from the person who provided us with the DMCA Notice at issue.
The DMCA allows us to restore the removed content if the party filing the original DMCA Notice does not file a court action against you within ten business days of receiving the copy of your DMCA Counter-Notice.
Please be aware that if you knowingly materially misrepresent that material or activity on the MoveUP Services was removed or disabled by mistake or misidentification, you may be held liable for damages (including costs and attorneys’ fees) under Section 512(f) of the DMCA.
12.3. Reporting Claims of Other Intellectual Property Infringement. If you believe any User Content accessible on or through the MoveUP Services infringes your Intellectual Property Rights (other than your copyrights), you may request removal of the User Content from the MoveUP Services by submitting written notification to the Unified Potential Intellectual Property Agent (designated above). The written notice (an “Infringement Notice”) must include all of the following:
• Your physical or electronic signature.
• Identification and description of the Intellectual Property Rights you believe to have been infringed. If you are reporting a claim of trademark infringement, your written notice must identify the exact trademark, service mark, or other mark (and if the mark is anything other than standard characters, you must include a copy of the mark), a description of the goods or services for which you believe you have trademark rights, the registration number and office of registration (if applicable), and a description of the reason why you believe the User Content (“Alleged Infringing Content”) causes a likelihood of confusion with or dilution of your mark.
• Identification of the Alleged Infringing Content you believe to be infringing in a sufficiently precise manner to allow us to locate it. Adequate information by which we can contact you (such as your name, mailing address, telephone number, and, if available, an e-mail address).
• A statement that you have a good faith belief that use of the Alleged Infringing Content is not authorized by the owner of the Intellectual Property Rights, the owner’s agent, or the law.
• A statement that the information in the written notice is accurate.
• A statement, under penalty of perjury, that you are the authorized owner of the Intellectual Property Rights or that you are authorized to act on behalf of the owner of the Intellectual Property Rights.
Upon receipt of an Infringement Notice, we may act in any manner that we deem reasonable and appropriate, including without limitation, temporarily or permanently Removing the Alleged Infringing Content described in such Infringement Notice. However, we will generally endeavor to provide a copy of the Infringing Notice to the user who is responsible for the applicable Alleged Infringing Content (the “Responsible Party”) and request that such Responsible Party provide a written response to the party alleging infringement (the “Asserting Party”) or to us, in which case we will forward such response to the Asserting Party, together with the Responsible Party’s contact information (name, address and e-mail address). If the Responsible Party’s response is not satisfactory to the Asserting Party, or the Responsible Party fails to respond within ten (10) business days of the date we forward the Infringement Notice, we may disclose, if known, the name, address, e-mail address, and other contact information of such Responsible Party to the Asserting Party, in which case, such Responsible Party and such Asserting Party will communicate directly to resolve the matters alleged in such Infringement Notice. Thereafter, but without limiting our rights to take any other action that we deem appropriate or reasonable (including Removing the Alleged Infringing Content), we will Remove or otherwise act with respect to the Alleged Infringing Content upon a written direction from both the Asserting Party and the Responsible Party or in accordance with Section 12.1 above. WE HAVE NO RESPONSIBILITY OR LIABILITY FOR ANY USER CONTENT OR ANY OTHER CONTENT OR MATERIALS THAT ARE POSTED, DISPLAYED, OR TRANSMITTED BY ANY PERSON IN CONNECTION WITH THE MOVEUP SERVICES (COLLECTIVELY, “THIRD PARTY MATERIALS”) OR FOR ANY FAILURE TO REMOVE ANY THIRD PARTY MATERIALS. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT AND SUBJECT TO APPLICABLE LAW, ANY PERSON WHICH ALLEGES THAT ANY THIRD PARTY MATERIALS INFRINGES ITS OR A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS EXPRESSLY AND FOREVER WAIVES ALL SUCH INFRINGEMENT CLAIMS AGAINST THE UP PARTIES AND AGREES THAT ITS SOLE RECOURSE WITH RESPECT TO ANY SUCH CLAIMS WILL BE AGAINST THE PERSON OR ENTITY WHO POSTED OR IS OTHERWISE RESPONSIBLE FOR SUCH THIRD PARTY MATERIALS.
WE HAVE NO RESPONSIBILITY OF LIABILITY TO ANY PERSON FOR REMOVING ANY THIRD PARTY MATERIALS. EACH USER EXPRESSLY AND FOREVER WAIVES ALL CLAIMS AGAINST THE UP PARTIES ARISING OUT OF OR RELATING TO THE TEMPORARY OR PERMANENT SUSPENSION OR REMOVAL OF ANY THIRD PARTY MATERIALS.
You agree that if you knowingly materially misrepresent that User Content or activity on the MoveUP Services is infringing Intellectual Property Rights, you will be held liable, and will reimburse us, for costs and fees (including attorneys’ fees) and other damages we incur in reviewing, investigating, addressing, and responding to your written notice and the claims made in such notice.
13. Indemnification. You will indemnify, defend and hold harmless the UP Parties (and their successors and assigns) from, against, and with respect to any and all liabilities, claims, losses, damages (including without limitation property damage and all incidental, consequential, punitive, special, and exemplary damages), injuries (including without limitation personal injury, sickness, and death), interest, fines, taxes, premiums, assessments, penalties, costs, and expenses (collectively, “Claims”), including without limitation any and all attorneys’ fees, paraprofessionals’ fees, and expenses incurred in the defense of Claims (whether or not a suit is instituted and, if so instituted, through all trial and appellate levels), arising out of, related to, or resulting from: (i) your use of the MoveUP Services, (ii) your provision of the Transportation Services; (iii) your breach of this Agreement (including your failure to comply with the Policies) or of any of your representations or warranties; (iv) the negligence or willful misconduct of you or any of your Affiliates, employees, or agents; (v) the violation of any applicable law by you or any of your Affiliates, employees, or agents; (vi) the violation or infringement of the rights of a User or any other person by you or any of your Affiliates, employees, or agents; or (vii) the UP Parties’ use of your User Content. Your obligations under this Section will continue even if you stop using the MoveUP Services and will survive the closing, deletion, expiration, or termination of your Driver Account or this Agreement.
14. Disclaimers and Limitation of Liability – PLEASE READ CAREFULLY: This Section 14 limits the liability of the UP Parties. The provisions of this Section apply to the maximum extent permitted under applicable law. Some jurisdictions do not permit the limitation of liability in contracts or the disclaimers of implied warranties, so some or all of the provisions of this Section may not apply to you.
14.1. We make no representations or warranties that your use of the MoveUP Services will result in any Ride Requests or that Booking Users will pay the required Driver Fee, Cancellation Fee, Cleaning Charges, or any other fees or payments owed by the Booking Users. We do not screen or otherwise evaluate Users or Participants, and you may be introduced to a third party that may pose a risk of harm to you or others. We make no representations or warranties as to the actions or inactions of the Booking Users and Participants, and you understand and agree that the UP Parties are not responsible or liable for the acts or omissions of Users or Participants. WE EXPRESSLY DISCLAIM ALL LIABILITY FOR ANY ACT OR OMISSION OF YOU, THE USERS, AND THE PARTICIPANTS. AS BETWEEN YOU AND US, YOU ASSUME ALL RISKS ARISING OUT OF THE TRANSPORTATION SERVICES AND THE ACTS OR OMISSIONS OF USERS AND PARTICIPANTS. YOU ARE ADVISED, AND HEREBY AGREE, TO TAKE REASONABLE SAFETY PRECAUTIONS WITH RESPECT TO YOUR INTERACTIONS WITH THIRD PARTIES YOU ENCOUNTER IN CONNECTION WITH YOUR USE OF THE MOVEUP SERVICES AND YOUR PROVISION OF YOUR TRANSPORTATION SERVICES. NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT TO THE CONTRARY, YOU, ON YOUR OWN BEHALF AND ON BEHALF OF YOUR AFFILIATES, EMPLOYEES, AND AGENTS, AND YOUR RESPECTIVE SUCCESSORS, HEIRS, AND ASSIGNS, HEREBY FOREVER RELEASE, ACQUIT, DISCHARGE, AND AGREE NOT TO SUE OR INSTITUTE ANY LEGAL ACTION AGAINST THE UP PARTIES FROM, AGAINST, AND WITH RESPECT TO, ALL CLAIMS, ACTIONS, LIABILITY, OBLIGATIONS, DAMAGES, CAUSES OF ACTION (WHETHER BASED IN TORT, CONTRACT, OR ON ANY LEGAL OR EQUITABLE GROUND OR THEORY OF RECOVERY) ARISING FROM, RELATED TO, OR ASSOCIATED WITH: (1) THE TRANSPORTATION SERVICES, (2) ANY ACTS OR OMISSIONS OF USERS OR PARTICIPANTS, OR (3) ANY TRANSACTION BETWEEN YOU AND A USER OR ANY OTHER PERSON.
14.2. You understand that we cannot and do not guarantee or warrant that User Content, files, or other content or materials available for downloading from the Internet or transmitted through the MoveUP Services will be free of viruses, malware, or other destructive code. You are responsible for implementing sufficient procedures and safeguards to satisfy your particular requirements for anti-virus and anti-malware protection and for maintaining a means external to the MoveUP Services for any reconstruction of any lost data. WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES, MALWARE, OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT, DAMAGE, OR DELETE YOUR DEVICES OR DATA DUE TO YOUR USE OF THE MOVEUP SERVICES OR YOUR ACCESSING OR DOWNLOADING ANY USER CONTENT, MOVEUP MATERIALS, OR OTHER MATERIALS AVAILABLE ON OR THROUGH THE MOVEUP SERVICES OR LINKED TO FROM THE MOVEUP SERVICES.
14.3. TO THE FULLEST EXTENT PERMITTED BY LAW, WE HAVE NO LIABILITY OF ANY KIND TO YOU OR OTHERS AS A RESULT OF ANY LOSS, THEFT, DELETION, DESTRUCTION, ALTERATION, OR CORRUPTION OF, DAMAGE, UNAUTHORIZED ACCESS TO, OR FAILURE TO TRANSMIT, STORE, BACKUP, OR ENCRYPT ANY USER CONTENT OR ANY DATA OR FILES STORED ON ANY DEVICE USED TO ACCESS THE MOVEUP SERVICES.
14.4. YOUR USE OF THE MOVEUP SERVICES AND THE MOVEUP MATERIALS (AND ALL OTHER CONTENT, INCLUDING USER CONTENT, PROVIDED OR TRANSMITTED ON OR THROUGH THE MOVEUP SERVICES) IS AT YOUR OWN RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, THE MOVEUP SERVICES AND THE MOVEUP MATERIALS (AND ALL OTHER CONTENT, INCLUDING USER CONTENT, PROVIDED OR TRANSMITTED ON OR THROUGH THE MOVEUP SERVICES) ARE PROVIDED “AS IS”, “WITH ALL FAULTS” AND “AS AVAILABLE”, AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED.
14.5. TO THE FULLEST EXTENT PERMITTED BY LAW, THE UP PARTIES HEREBY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE. NONE OF THE UP PARTIES MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, COMPLETENESS, APPROPRIATENESS, LEGALITY, SAFETY, OR AVAILABILITY OF THE MOVEUP SERVICES OR THE MOVEUP MATERIALS (OR ANY OTHER CONTENT, INCLUDING USER CONTENT, PROVIDED OR TRANSMITTED ON OR THROUGH THE MOVEUP SERVICES). WITHOUT LIMITING THE FOREGOING, NONE OF THE UP PARTIES REPRESENTS OR WARRANTS THAT THE MOVEUP SERVICES OR THE MOVEUP MATERIALS (OR ANY OTHER CONTENT, INCLUDING USER CONTENT, PROVIDED OR TRANSMITTED ON OR THROUGH THE MOVEUP SERVICES) WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT THE MOVEUP SERVICES OR THE SERVERS THAT MAKE THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE MOVEUP SERVICES OR THE MOVEUP MATERIALS (OR ANY OTHER CONTENT, INCLUDING USER CONTENT, PROVIDED OR TRANSMITTED ON OR THROUGH THE MOVEUP SERVICES) WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.
14.6. TO THE FULLEST EXTENT PERMITTED BY LAW, NEITHER YOU NOR ANY OF THE UP PARTIES WILL HAVE ANY LIABILITY FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT, EXEMPLARY, PUNITIVE, OR SPECIAL DAMAGES SUFFERED BY YOU OR ANY OTHER PERSON ARISING OUT OF, RELATED TO, OR ASSOCIATED WITH (A) YOUR USE OF THE MOVEUP SERVICES, (B) THE USE OF THE MOVEUP SERVICES BY ANY OTHER PERSON, OR (C) THE OPERATION OR MALFUNCTION OF THE MOVEUP SERVICES, REGARDLESS OF WHETHER OR NOT YOU, THE UP PARTIES, OR ANY OTHER PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
14.7. TO THE FULLEST EXTENT PERMITTED BY LAW, THE LIABILITY OF THE UP PARTIES TO YOU OR ANY OTHER PERSON FOR ANY REASON AND UPON ANY CAUSE OF ACTION (WHETHER BASED IN TORT, CONTRACT, OR ON ANY LEGAL OR EQUITABLE GROUND OR THEORY OF RECOVERY) WILL BE LIMITED TO THE LESSER OF YOUR ACTUAL DAMAGES OR THE TOTAL AMOUNT OF THE MOVEUP FUND DONATIONS MADE BY YOU THROUGH THE MOVEUP SYSTEM DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING SUCH LIABILITY. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, TORT, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, NONINFRINGEMENT, AND OTHER CAUSES OF ACTION OR ALLEGATIONS.
14.8. You acknowledge and agree: (a) that none of the UP Parties nor any person or entity acting, or purporting to act, on behalf of Unified Potential has made any representations to you other than those representations expressly made by Unified Potential in this Agreement, and (b) that in connection with your acceptance of this Agreement, you have not relied upon any representations made by any of the UP Parties or any person or entity acting, or purporting to act, on behalf of Unified Potential other than those representations and warranties expressly made by Unified Potential in this Agreement.
14.9. SOME JURISDICTIONS EITHER DO NOT ALLOW OR OTHERWISE LIMIT THE PERMISSIBLE SCOPE OF DISCLAIMERS AND LIMITATIONS SUCH AS THOSE APPEARING IN THIS Section 14. ACCORDINGLY, SOME OF THE LIMITATIONS AND DISCLAIMERS APPEARING IN THIS SECTION MAY NOT APPLY TO YOU. THE PROVISIONS OF THIS Section 14 WILL CONTINUE TO APPLY EVEN IF YOU STOP USING THE MOVEUP SERVICES AND WILL SURVIVE THE CLOSING, DELETION, EXPIRATION, OR TERMINATION OF YOUR DRIVER ACCOUNT OR THIS AGREEMENT.
15. Governing Law and Interpretation. This Agreement will be governed by and construed in accordance with the laws of the Commonwealth of Virginia and the applicable federal laws of the United States, without regard to the conflicts of law provisions of any jurisdiction. Without limiting the foregoing provision, you and Unified Potential expressly agree (a) that the Virginia Uniform Computer Information Transactions Act, Virginia Code §§ 59.1-501.1 et seq. (“UCITA”) is expressly excluded from this Agreement, (b) that any and all terms contained in UCITA will have no force or effect on any portion of this Agreement, and (c) that UCITA does not apply to this Agreement or the MoveUP Services. If any ambiguity or question of intent or interpretation arises, this Agreement will be construed as if drafted jointly by Unified Potential and you, and no presumptions or burden of proof will arise favoring or disfavoring Unified Potential or you by virtue of authorship of any of the provisions of this Agreement. The descriptive headings in this Agreement are inserted for convenience only and do not constitute a part of this Agreement. Throughout this Agreement, the referents of masculine, feminine, and gender neutral pronouns will not be limited to referents of the specified gender. The words “include”, “includes”, and “including” are not limiting, the word “or” is not exclusive, and the words “herein”, “hereunder”, and “hereof” refer to this Agreement. We retain all rights at law and in equity to enforce the provisions of this Agreement in accordance with applicable laws.
16. Dispute Resolution – PLEASE READ CAREFULLY: This Section 16 includes important provisions that affect your legal rights, including, for example, a waiver of the right to a jury, a waiver of the right to participate in a class action or similar proceeding, a limitation of the period of time for bringing a claim against us, an agreement that all court proceedings will take place only in the City of Lynchburg, Virginia, United States.
16.1. Initial Dispute Resolution. We believe you will have a positive experience using the MoveUP System and all of the MoveUP Services, and we invite you to contact us about any questions or issues you experience. We want to address any concerns you may have about the MoveUP Services without needing to engage in a formal legal process. Before initiating an arbitration proceeding or filing a lawsuit, you agree to attempt to resolve the dispute informally by e-mailing us at [[email protected]]. You and we agree to work in good faith to settle any dispute, claim, controversy, question, or disagreement directly through consultation and good faith negotiations, which is a prerequisite to either you or us initiating formal legal proceedings. If you and Unified Potential do not reach a mutually agreed resolution within a period of thirty (30) days from the time informal dispute resolution is first pursued pursuant to this Section 16.1, then either you or Unified Potential may initiate formal legal proceedings.
16.2. Class Action Waiver and Right to Opt-out.
16.2.1. You and we further agree that any lawsuit will be conducted in your and Unified Potential’s individual capacities only and not as a class action or other representative action, and you and we expressly waive the right to file a class action or seek relief on a class basis.
16.2.2. You have the right to opt-out of the above class action waiver provisions by completing, signing, and mailing the Opt-out Notice form located at [https://www.moveuplynchburg.org/legal/optout] within sixty (60) days after the date you created your User Account. In order for the Opt-out Notice to be valid and effective, it must be completed in its entirety and signed by you, and you understand and agree that you are responsible for retaining proof of mailing and delivery. If you exercise your option to opt out as provided in this Section, then Section 16.2.1 will not apply and will not be considered a part of this Agreement.
16.3. Limited Exception for Injunctive Relief. You acknowledge and agree that any violation of the Acceptable Use Policy or the Driver Eligibility Policy may cause irreparable harm to the UP Parties (or other Drivers or Users), for which monetary damages would not be an adequate remedy. Therefore, notwithstanding Sections 16.1, you agree that: (a) we will be entitled to immediate injunctive relief to enjoin any actual, suspected, threatened, or potential violation by you of the Acceptable Use Policy; (b) we will be entitled to such injunctive relief without any obligation (i) to post a bond or other security, or (ii) to prove actual damages or to prove that monetary damages will not provide an adequate remedy; (c) the provisions of Sections 16.1 will not apply to any action by us seeking such injunctive relief; and (d) you will not oppose or otherwise challenge the appropriateness of injunctive relief or the entry by a court of competent jurisdiction of an order granting injunctive relief.
16.4. Service of Process. To the fullest extent permitted by law, if your Account Information does not contain your current and accurate physical address (or if we are unable, after reasonable efforts, to effect service of process on you at such physical address), you hereby irrevocably agree to accept service of process by any means of communication associated with your Driver Account or through any contact information in your Account Information, including without limitation, service by U.S. mail, e-mail, SMS, messages, or alerts displayed or sent to you through the MoveUP System, or social media messages, posts, or tweets, and you waive any objections to service of process by such methods.
16.5. Time Period for Bringing Claims. TO THE FULLEST EXTENT PERMITTED BY LAW: YOU MUST COMMENCE OR FILE ANY CLAIM OR ACTION ARISING OUT OF OR RELATING TO (A) THIS AGREEMENT, (B) THE MOVEUP SYSTEM, the MoveUP Materials, THE MOVEUP DRIVER SERVICES, OR ANY OF THE MOVEUP SERVICES (OR THE USE OF ANY OF THE FOREGOING BY YOU OR ANY OTHER PERSON), (C) THE PERFORMANCE OR NON-PERFORMANCE BY US OF ANY OF OUR OBLIGATIONS UNDER THIS AGREEMENT, OR (D) ACTUAL OR ALLEGED INFRINGEMENT BY ANY OF THE UP PARTIES, the MoveUP Materials, OR THE MOVEUP SERVICES OF ANY INTELLECTUAL PROPERTY RIGHTS, WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CLAIM OR CAUSE OF ACTION IS PERMANENTLY BARRED. TO THE FULLEST EXTENT PERMITTED BY LAW, YOU EXPRESSLY WAIVE THE RIGHT TO COMMENCE OR FILE ANY SUCH CLAIM OR ACTION UNDER ANY LONGER STATUTE OF LIMITATIONS.
16.6. Venue for Judicial Actions. Any and all claims and disputes arising out of or relating to (a) this Agreement, (b) the MoveUP System, the MoveUP Materials, the MoveUP Driver Services, or any of the MoveUP Services (or the use of any of the foregoing by you or any other person), (c) the Transportation Services, (d) the performance or non-performance by you or us of any of obligations under this Agreement, or (e) actual or alleged infringement by you, any of the UP Parties or Affiliates thereof, or the MoveUP Materials or the MoveUP Services of any Intellectual Property Rights, will be commenced and maintained only in a state or federal court of competent subject matter jurisdiction situated or located in the City of Lynchburg, Virginia, United States. YOU AND Unified Potential BOTH CONSENT TO THE EXCLUSIVE PERSONAL JURISDICTION OF AND VENUE IN ANY SUCH COURT (AND IN ANY OF THE APPROPRIATE APPELLATE COURTS THEREFROM) AND IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION (INCLUDING WITHOUT LIMITATION ANY OBJECTION BASED ON INCONVENIENT FORUM) WHICH YOU OR WE MAY NOW OR HEREAFTER HAVE TO VENUE IN ANY SUCH COURT.
16.7. Waiver of Jury Trial. YOU AND WE IRREVOCABLY AND UNCONDITIONALLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT YOU OR WE MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL ACTION, PROCEEDING, CAUSE OF ACTION, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO (A) THIS AGREEMENT, (B) THE MOVEUP SYSTEM, THE MoveUP Materials, THE MOVEUP DRIVER SERVICES, OR ANY OF THE MOVEUP SERVICES (OR THE USE OF ANY OF THE FOREGOING BY YOU OR ANY OTHER PERSON), (C) THE PERFORMANCE OR NON-PERFORMANCE BY YOU OR US OF ANY OF OBLIGATIONS UNDER THIS AGREEMENT, OR (D) ACTUAL OR ALLEGED INFRINGEMENT BY YOU, ANY OF THE UP PARTIES OR AFFILIATES THEREOF, OR THE MoveUP Materials or the MOVEUP SERVICES OF ANY INTELLECTUAL PROPERTY RIGHTS. YOU CERTIFY AND ACKNOWLEDGE THAT: (1) NONE OF THE UP PARTIES HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT WE WOULD NOT SEEK TO ENFORCE THE FOREGOING WAIVER IN THE EVENT OF A LEGAL ACTION; (2) YOU HAVE CAREFULLY CONSIDERED THE IMPLICATIONS OF THIS WAIVER; (3) YOU ARE MAKING THIS WAIVER KNOWINGLY AND VOLUNTARILY; AND (4) YOU HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS IN THIS SECTION.
17. Notice to Us. Except as otherwise provided herein or as otherwise directed by us from time to time, you may provide notice to us in writing at the following address: [144 Beacon Hill Place, Lynchburg, VA 24503], and such notice will be deemed given when we receive it.
18. Force Majeure. The performance of this Agreement by you and us, in part or in full, and each Driver’s performance of the Transportation Services, may be subject to events or occurrences beyond its reasonable control including, but not limited to acts of God, war, threat of war, government retaliation against foreign enemies, government order or regulation, disasters, fire, floods, earthquakes, strikes or threats of strikes, civil disorder, terrorist acts and/or threats of terrorism, acts of foreign enemies or any other similar occurrence making it illegal, impossible, or commercially impracticable to perform its obligations under this Agreement (each a “Force Majeure Event”). Your late arrival at the designated starting location for Transportation Services will not be considered a Force Majeure Event if we determine that such failure reasonably could have been avoided by you. Immediately upon written notice, either party may suspend the performance of, or partially perform, its obligations under this Agreement without liability or additional obligation to the extent that such performance is delayed, prevented, or frustrated by a Force Majeure Event. Unless otherwise hereafter agreed in writing by the parties, any time for performance which falls due during or subsequent to a Force Majeure Event will be automatically extended for such reasonable period of time as is required to render the performance affected thereby.
19. Independent Contractor Status. You and Unified Potential acknowledge and agree that the relationship between you and us will, at all times, be that of independent contractors and not partners, joint venturers, or employer/employee, and that you will not have the right or authority to make any contracts, agreements, or commitments in the name of or on behalf of Unified Potential. Under no circumstances will you be deemed an agent of Unified Potential.
20. Tax Reporting and Filing. You acknowledge and agrees that you will be solely responsible for filing all tax returns, tax declarations, and tax schedules, and for the payment of all the taxes required, when due, with respect to any and all compensation earned by you in connection with your provision of the Transportation Services or your use of the MoveUP System, the MoveUP Driver Services, or any of the MoveUP Services. You will pay all local, state, and federal taxes incurred by you while performing the Transportation Services, including all applicable income taxes and self-employment taxes. To the extent required to do so under applicable Internal Revenue Code provisions or other applicable laws, each party will report, on IRS Forms 1099 or other applicable forms, the amount it pays the other party under this Agreement. Each party will, upon the request of the other party, deliver a completed IRS Form W-9 to the other party.
21. Termination. We reserve the right, without any liability to you, to Remove your User Content (in whole or in part), to modify, disable, or delete your username, to suspend, close, delete, or terminate your Driver Account, and to suspend or terminate your permission to access and use the MoveUP System,, the MoveUP Driver Services, or other MoveUP Services for your breach or violation of this Agreement (including the Policies) or for any other reason. You may close your Driver Account and terminate this Agreement at any time upon written notice to us. We reserve the right to retain historical records and information related to your Driver Account for financial, security, legal, and other purposes. This Agreement and all rights, licenses, and permissions granted by Unified Potential to you will automatically terminate upon the suspension, closing, deletion, expiration, or termination of your Driver Account or this Agreement. Any termination, cancellation, or expiration of this Agreement notwithstanding (and notwithstanding the suspension, closing, deletion, or termination of your Driver Account or your stopping using the MoveUP Services), provisions which are by their terms intended to survive and continue will so survive and continue, including without limitation Sections 6.7, 7.3, 9.1, 9.2, 9.4, 10, 11, 12, 13, 14, 15, 16, 17, 20, and 22.
22. Miscellaneous. This Agreement (including the Policies) constitutes the entire agreement between you and Unified Potential pertaining to the subject matter hereof and supersedes all prior and contemporaneous agreements of the parties. If any provision of this Agreement is held invalid under any applicable law, such invalidity will not affect any other provision of this Agreement that can be given effect without the invalid provision, and, to this end, the provisions hereof are severable. No delay or omission on the part of any party in exercising any right hereunder will operate as a waiver of such right or any other right under this Agreement. This Agreement is personal to you. You will not assign, delegate, or subcontract any of your rights or obligations under this Agreement without our prior written consent, and any attempt to do so without such consent will be void. You acknowledge and agree that we may assign, delegate, or subcontract any or all of our rights or obligations hereunder. Subject to the foregoing, this Agreement will inure to the benefit of, and be binding upon, the parties hereto and their respective successors and permitted assigns.
23. Contacting Us. If you have any questions about this Agreement, the Policies, the MoveUP Services, or your Driver Account, you may contact us by e-mail at [[email protected]].