These Terms of Use constitute a legally binding agreement (the “Agreement”) between you and Ziphawk Inc., its parents, subsidiaries, representatives, affiliates, officers and directors (collectively, “Ziphawk,” “we,” “us,” or “our”) governing your use of the Ziphawk application, website, and technology platform (collectively, the “Ziphawk Platform” or the “Platform”).

1. ACCEPTANCE OF TERMS.

By entering into this Agreement, or by using or accessing the Ziphawk Platform, you

expressly acknowledge that you understand this Agreement (including the dispute resolution and arbitration provisions in Section 12) and accept all of its terms. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT USE OR ACCESS THE ZIPHAWK PLATFORM OR ANY OF THE SERVICES PROVIDED THROUGH THE ZIPHAWK PLATFORM.

2. DESCRIPTION OF THE ZIPHAWK PLATFORM AND RIDESHARE SERVICES.

2.1.      The Ziphawk Platform is a marketplace platform that enables Platform Users (as defined herein) to request, arrange, and schedule transportation to certain destinations.

2.1.1.         “Drivers” refers to the independent contractors that use an approved personal vehicle to provide transportation services.

2.1.2.         “Organizers” refers to the holder of an Account (as defined herein) from which Rideshare Services is requested.

2.1.3.         “Riders” refers to any persons transported by Drivers for whom an Organizer is legally authorized to request or arrange Rideshare Services. Platform Users may be both Organizers and Riders.

2.1.4.         Drivers and Organizers are collectively referred to herein as “Platform Users.”

2.1.5.         The driving services provided by Drivers to Organizers or Riders will be referred to herein as “Rideshare Services.”

2.2.      As a Platform User, you authorize Ziphawk to match you with a Driver, Rider, or Organizer based on factors such as your location, the estimated time to pick up, your destination, user preferences, and platform efficiency, and to cancel an existing match and rematch based on the same considerations. Any decision by a Platform User to offer or accept Rideshare Services is a decision made in such Platform User’s sole discretion. Each Rideshare Service provided by a Driver to a Rider or Organizer will constitute a separate agreement between such persons.

3. USE OF THE ZIPHAWK PLATFORM AND RIDESHARE SERVICES.

3.1.      General.         

3.1.1.         In order to access the Ziphawk Platform and request the Rideshare Services, you must register for and maintain an active user account (“Account”). You must be at least eighteen (18) years of age to obtain an Account. Each Account registration requires you to submit certain personal information to Ziphawk, such as your name, address, mobile phone number and age, as well as at least one valid payment method (either a credit card or accepted payment partner as approved by Ziphawk from time to time and at Ziphawk’s sole discretion). You agree to maintain accurate, complete, and up-to-date personal and payment information in your Account. Your failure to maintain accurate, complete, and up-to-date Account information, including having an invalid or expired payment method on file, may result in your inability to access and use the Platform and Rideshare Services or termination of this Agreement. You are responsible for all activity that occurs under your Account, and you agree to maintain the security and secrecy of your Account username and password at all times.

3.1.2.         Platform Users are not permitted to have more than one active Account at any one time. Organizers may arrange for use of the Rideshare Services for Riders that at least 8 years of age without the accompaniment of a parent, guardian or other responsible adult. This means that Riders under the age of 8 years old may not participate in Rideshare Services unless accompanied by a parent, guardian, or other responsible adult.

3.1.3.         Without limiting the foregoing, you may not assign or otherwise transfer your Account to any other person or entity. You may not access or use the Platform or Rideshare Services for any unlawful purpose and you agree to comply with all applicable laws and regulations when accessing and using the Platform and Rideshare Services.

3.1.4.         You acknowledge and agree that your failure to adhere to any of the terms and conditions applying to the Account may result in the termination of your Account and your inability to further access or use the Platform or Rideshare Services.

3.1.5.         You are solely responsible for obtaining and maintaining the means for accessing and using the Platform or Rideshare Services. If you access and use the Platform via a mobile network, your network provider’s data and messaging rates and fees may apply. Ziphawk does not guarantee that the Platform, the Rideshare Services, or any portion thereof, will function on any particular hardware or devices, or that same will be available through any particular network or service. You acknowledge and agree that the Platform or Rideshare Services may be subject to interruption, errors, malfunctions and delays caused by the use of the Internet, your access device(s) and network(s), and otherwise inherent to electronic communications.

3.1.6.         By accessing and using the Platform or Rideshare Services via your Account, you agree that we may contact you in connection with your access and use of same, including, without limitation, sending you informational text (SMS) messages or e-mail. You may opt-out of receiving text (SMS) messages from us at any time by sending us an e-mail at [email protected]. You understand that opting out of receiving text (SMS) messages from us may negatively impact your access to and use of the Platform or the Rideshare Services.

            3.2.      Restricted Activities.

3.2.1.         With respect to your use of the Ziphawk Platform and your participation in the Rideshare Services, you agree that you will not:

• impersonate any person or entity;
• stalk, threaten, or otherwise harass any person, or carry any weapons;
• violate any law, statute, rule, permit, ordinance or regulation;
• interfere with or disrupt the Ziphawk Platform or the servers or networks connected to the Ziphawk Platform;
• post information on the Ziphawk Platform or participate in the Rideshare Services in a manner that is fraudulent, libelous, abusive, obscene, profane, sexually oriented, harassing, or illegal;
• use the Ziphawk Platform in any way that infringes any third party’s rights, including: intellectual property rights, copyright, patent, trademark, trade secret, or other proprietary rights or rights of publicity or privacy;
• post, email, or otherwise transmit any malicious code, files or programs designed to interrupt, damage, destroy or limit the functionality of the Ziphawk Platform or any computer software or hardware or telecommunications equipment or surreptitiously intercept or expropriate any system, data or personal information;
• forge headers or otherwise manipulate identifiers in order to disguise the origin of any information transmitted through the Ziphawk Platform;
• “frame” or “mirror” any part of the Ziphawk Platform, without our prior written authorization or use meta tags or code or other devices containing any reference to us in order to direct any person to any other web site for any purpose;
• modify, adapt, translate, reverse engineer, decipher, decompile or otherwise disassemble any portion of the Ziphawk Platform;
• rent, lease, lend, sell, redistribute, license or sublicense the Ziphawk Platform or access to any portion of the Ziphawk Platform;
• use any robot, spider, site search/retrieval application, or other manual or automatic device or process to retrieve, index, scrape, “data mine”, or in any way reproduce or circumvent the navigational structure or presentation of the Ziphawk Platform or its contents;
• link directly or indirectly to any other web sites;
• transfer or sell your Ziphawk Account, password, identification, or any other Platform User’s information to any other party;
• discriminate against or harass anyone on the basis of race, national origin, religion, gender, gender identity, physical or mental disability, medical condition, marital status, age or sexual orientation;
• violate any referral program rules if you participate in a referral program; or
• cause any third party to engage in the restricted activities enumerated above.

            3.3.      Rideshare Services Provided to Minor Passengers.

3.3.1.         Any request for transportation of minor children under the age of eighteen (18) years must be arranged by the authorized holder of an Account. You may not authorize third parties to use your User Account, and you may not allow persons under the age of eighteen (18) years to participate in Rideshare Services unless such transportation is authorized or accompanied by the holder of the User Account. Any Rideshare Services provided to a person younger than eighteen (18) years of age and requested from a valid, authorized User Account is presumed to be an authorized use of the Rideshare Services. Ziphawk will not be required to verify the identity or age of any holder of a User Account prior to that User’s participation in the Rideshare Services.

3.3.2.         Ziphawk anticipates that, from time to time, Organizers will request that Drivers provide Rideshare Services to unaccompanied minor Riders. In such cases, Organizers agree to obtain the consent of each minor Rider’s parent or legal guardian prior to arranging Rideshare services for the minor Rider. At the time of each request for the provision of Rideshare Services to minor Riders, the Organizer warrants and represents by its request for Rideshare Services, that the Organizer has obtained authority, granted by such minor Rider’s parent or legal guardian, to request Rideshare Services on behalf of the minor Rider. The Organizer hereby agrees to defend, indemnify and hold harmless Ziphawk, as well as its employees, officers, managers, and agents from and against any and all demands, claims, actions, causes of action, suits, proceedings, investigations, liabilities, obligations, judgments, losses, damages, costs or expenses (including, without limitation, reasonable attorney’s fees) (collectively, “Damages”), as they are incurred or suffered by Ziphawk or its employees, officers, managers, and agents, and caused by or arising out of provision of Rideshare Services to any minor Rider pursuant to a misrepresentation of authority by the Organizer. Any minor Rider under the age of eight (8) years must be accompanied by a person over the age of eighteen (18) who maintains and accepts responsibility for the custody and care of the minor Rider throughout participation in the Rideshare Services. Any child or minor Rider that requires the use of a booster seat or safety seat must be accompanied by a parent or legal guardian over the age of eighteen (18) years to assist the Rider with buckling into and out of the booster seat or safety seat. Ziphawk will not provide booster seats and Drivers will not assist in buckling a minor Rider into a booster seat at any time.

3.4.      Opt-In Safety Features.

3.4.1.         The Ziphawk Platform offers enhanced safety features that Riders may opt to use while participating in the Rideshare Services. One such feature allows you to have a photographic/video record live-streamed to another Platform User during a Rider’s use of the Rideshare Services.

3.4.2.         If Riders or Organizers choose to use this feature, Drivers will record video and potentially audio during a Rider’s use of the Rideshare Services. This session will be recorded and broadcasted (e.g., to you as an Organizer) without any opt in. If you opt-in to Ziphawk customer support video monitoring, the session will be recorded, broadcasted and provided to Ziphawk specialists (to assist in monitoring the use of the Rideshare Services), and will be stored indefinitely by Ziphawk for any lawful purposes, including providing the same to law enforcement.

3.4.3.         Without limiting the foregoing, you hereby agree that by opting in to this feature: (a) you hereby grant permission to the rights of your image, likeness, and sound of your voice as recorded on any audio or video media without payment or any other consideration; (b) as between you and Ziphawk, Ziphawk will own such recorded materials; (c) Ziphawk, and the relevant Driver will have the full rights to capture, use, and store such video and audio, including your image, voice, and those of other users tied to your Account (whether accompanied by you or not), as outlined herein; (d) your image/likeness/voice may be edited, copied, exhibited, published or distributed; and (e) you waive the right to inspect or approve the finished product wherein your likeness or other materials appear.

            3.5.      Other Guidelines for Participation in the Rideshare Services.

3.5.1.         It is highly recommended, but not required, that there be a mobile device in a Rider’s possession that (a) is capable of voice and SMS communication and (b) has been registered with Ziphawk (e.g., as part of the Organizer’s contact information).

3.5.2.         Riders must always ride in the back seat of a vehicle.

3.5.3.         Riders must use seat belts during a ride and otherwise follow all applicable laws.

3.5.4.         Pets are not allowed on a ride.

3.5.5.         Riders and Drivers are solely responsible for their own personal belongings. Ziphawk will not be responsible for any lost or stolen items.

3.5.6.         Drivers must confirm their arrival on the Platform when they arrive at pickup location and confirm again when the Rider sits in the car. If applicable, video broadcast will automatically start.

3.5.7.         Driver must show video, audio, text, and picture pickup permission to the Rider and Organizer, if any, for safety purposes. Driver must not copy any of the information.

3.5.8.         Organizers can track the ride on map and also watch live video feed.

3.5.9.         Riders should use Driver’s vehicle with proper care and respect. Any damage to vehicles by Riders may result in additional charges to the Organizer of the ride. Drivers are encouraged to take photos of any such damages to assist in the documentation of same.

3.5.10.       The Platform allows for formal feedback about a Driver from all Riders, including feedback regarding a Driver’s promptness, attitude, safety and vehicle quality. Excessive or consistent negative feedback about a Driver will be investigated and could result in the temporary or permanent suspension of that Driver.

3.5.11.       The Platform also allows Drivers to provide formal feedback about Rider(s) or Organizer(s), including a Rider’s promptness, attitude, and other conduct. Accumulation of an excessive or consistent level of negative feedback about a Rider or Organizer may be investigated and could result in the temporary or permanent suspension of that Rider or Organizer.

3.5.12.       Drivers must confirm drop-off of a Rider on the Platform to inform the Organizer that the ride has completed.

3.5.13.       Until further notice, all Drivers and Riders must wear face coverings while providing or participating in Rideshare Services. All Riders and Drivers must certify that they will wear face coverings throughout the ride, that they are symptom-free, and that they will follow all applicable guidelines related to COVID-19.

            3.6.      Driver Misconduct; Zero Tolerance Policy.

3.6.1.         Ziphawk reserves the right, but does not undertake the obligation, to suspend any Driver upon a report of any Driver misconduct associated with a ride, including, without limitation, any unsafe driving, violation of the Ziphawk’s policies, or inappropriate behavior. During the suspension, the Driver will not be allowed to provide any Rideshare Services. Ziphawk may conduct an investigation of the reported misconduct, during which Ziphawk will contact the Driver and any relevant Riders or Organizers for an account of the misconduct. Based upon the results of the investigation, Ziphawk will decide, in its sole discretion, whether to lift the stay or permanently suspend the Driver from the Platform or from providing Rideshare Services. All decisions are final.

3.6.2.         Ziphawk maintains a zero-tolerance policy regarding Drivers who, during a ride: (a) use alcohol, illegal substances, or misuse prescription medications, (b) violate applicable traffic laws, or (c) drive recklessly. Upon any such violations, Ziphawk reserves the right to terminate or suspend the Driver’s access to the Platform, pending further investigation.

            3.7.      Use of the Platform on Mobile Devices.

3.7.1.         Subject to your compliance with this Agreement, Ziphawk grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the Platform on a mobile device that you own or control and to run such copy of the Platform solely to access the Platform for your own internal purposes.

3.7.2.         By accessing or using the Platform through a mobile device, you acknowledge that such use of the Platform is subject to the terms and conditions of using the mobile device and any underlying software, as set by the provider of the device or software (i.e., Apple iOS or Google Play). It is your sole responsibility to review the terms and conditions that apply to any relevant mobile devices before using the Platform thereon.

3.7.3.         Certain software code incorporated into or distributed with the Application may be licensed by third parties under various “open-source” or “public-source” software licenses (such as the GNU General Public License, the GNU Lesser General Public License, the Apache License, the Berkeley Software Distribution License, and the Sun Public License) (collectively, the “Open Source Software”). Notwithstanding anything to the contrary in this Agreement, the Open Source Software is not licensed under Section 3.7.1 and instead is separately licensed pursuant to the terms and conditions of the respective open-source software licenses. You agree to comply with the terms and conditions of such open-source software license agreements.

3.7.4.         As a marketplace platform, Ziphawk connects Drivers with Organizers. For the Platform to work, Ziphawk need to collect your location information. When you open the Platform on your mobile device, Ziphawk collects your location information in real-time. Your location information is necessary for the functionality of the Platform and for the provision of Rideshare Services. By using the Platform, you hereby authorize us to collect, use, and store your location data even when the Platform is running in the background (for Drivers only). If you do not wish to permit Ziphawk’s collection of this information on your mobile device, you may not use the Platform or the Rideshare Services.

3.7.5.         Certain features of the Platform may require access to and use of your device’s map features or functionality, such as Google Maps or other third-party services. Any use of those features will be subject to the terms and conditions applicable to such third-party services. By using the Platform, you may also be required to agree to the end-user terms for any such third-party services. It is your sole responsibility to review the terms and conditions that apply to the third-party services before using those services in conjunction with the Platform. This Agreement does not apply to any activities conducted via third-party services.

3.7.6.         You understand that the Ziphawk Platform is evolving. As a result, Ziphawk may require you to accept updates to the Platform or other software that you have installed on your computer or mobile device. You acknowledge and agree that Ziphawk may update the Platform with or without notifying you. You may need to update third-party software from time to time in order to access or use the Platform.

4. TERMINATION OF MEMBERSHIP OR USE.

4.1.      This Agreement is effective upon your creation of an Account. This Agreement may be terminated: a) by Platform User, without cause, upon seven (7) days’ prior written notice to Ziphawk; or b) by either party immediately, without notice, upon the other party’s material breach of this Agreement.

4.2.      In addition, Ziphawk may terminate this Agreement or deactivate your Account immediately in the event: (a) you no longer qualify to provide Rideshare Services or to operate the approved vehicle under applicable law, rule, permit, ordinance, or regulation; (b) you fall below Ziphawk’s rating or cancellation threshold; (c) Ziphawk has the good faith belief that such action is necessary to protect the safety of the Ziphawk community or third parties, provided that in the event of a deactivation pursuant to (a)-(c) above, you will be given notice of the potential or actual deactivation and an opportunity to attempt to cure the issue to Ziphawk’s reasonable satisfaction prior to Ziphawk permanently terminating the Agreement.

4.3.      For all other breaches of this Agreement, you will be provided notice and an opportunity to cure the breach. If the breach is cured in a timely manner and to Ziphawk’s satisfaction, this Agreement will not be permanently terminated.

4.4.      Sections 8-12 will survive any termination or expiration of this Agreement.

5. PLATFORM USER CONTENT.

5.1.      We are not responsible for the use of any personal information that you disclose to other Platform Users on the Ziphawk Platform or through the Rideshare Services. Please carefully select the type of information that you post on the Ziphawk Platform or through the Rideshare Services or release to others. We disclaim all liability, regardless of the form of action, for the acts or omissions of other Platform Users (including unauthorized users or “hackers”).

5.2.      Opinions, advice, statements, offers, or other information or content concerning Ziphawk or made available through the Ziphawk Platform, but not directly by us, are those of their respective authors, and should not necessarily be relied upon. Such authors are solely responsible for such content. Under no circumstances will we be responsible for any loss or damage resulting from your reliance on information or other content posted by third parties, whether on the Ziphawk Platform or otherwise. We reserve the right, but we have no obligation, to monitor the materials posted on the Ziphawk Platform and remove any such material that in our sole opinion violates, or is alleged to violate, the law or this agreement or which might be offensive, illegal, or that might violate the rights, harm, or threaten the safety of Drivers, Riders, Organizers, or others.

6. SUPPLEMENTAL TERMS FOR DRIVERS.

6.1.      By providing Rideshare Services as a Driver on the Ziphawk Platform, you represent, warrant, and agree that:

1. You possess a valid driver’s license and are authorized and medically fit to operate a motor vehicle and have all appropriate licenses, approvals and authority to provide transportation to Riders in all jurisdictions in which you provide Rideshare Services. You must provide written copies of all required licenses, permits and other documentation necessary to establish your ability to operate as a Driver.

1. You own, or have the legal right to operate, the vehicle you use when providing Rideshare Services; such vehicle is in good operating condition and meets the industry safety standards and all applicable statutory and state department of motor vehicle requirements for a vehicle of its kind; and any and all applicable safety recalls have been remedied per manufacturer instructions.

1. You will not engage in reckless behavior while driving, drive unsafely, operate a vehicle that is unsafe to drive, permit an unauthorized third party to accompany you in the vehicle while providing Rideshare Services, provide Rideshare Services as a Driver while under the influence of alcohol or drugs, or take action that harms or threatens to harm the safety of the Ziphawk community or any third parties.

1. You will only provide Rideshare Services using the vehicle that has been reported to and approved by Ziphawk. You agree to update your Account to reflect any change to your vehicle information and provide all requisite information for vehicle approval in advance of using the vehicle to provide Rideshare Services.

1. You will not, while providing the Rideshare Services, operate as a public or common carrier or taxi service, accept street hails, charge for rides (except as expressly provided in this Agreement), demand that a rider pay in cash, or use a credit card reader, such as a Square Reader, to accept payment or engage in any other activity in a manner that is inconsistent with your obligations under this Agreement.

1. You will not attempt to defraud Ziphawk, Riders, or Organizers on the Platform or in connection with your provision of Rideshare Services. If we suspect that you have engaged in fraudulent activity we may withhold applicable fares or other payments for the ride(s) in question and take any other action against you available under the law.

1. You will not discriminate against Riders with disabilities and agree to review Ziphawk’s anti-discrimination policies as may be provided to you from time to time​. You will make responsible accommodation as required by law and our ​service animal policies or ​wheelchair policies​ for Riders who travel with their service animals or who use wheelchairs (or other mobility devices) that can be folded for safe and secure storage in the car’s trunk or backseat.

1. You agree that we may obtain information about you, including your criminal and driving records, and you agree to provide any further necessary authorizations to facilitate our access to such records during the term of the Agreement. You agree to immediately self- report any arrest, conviction, or driving infraction.

1. You have a valid policy of liability insurance (in coverage amounts consistent with all applicable legal requirements) that names or schedules you for the operation of the vehicle you use to provide Rideshare Services.

1. You will pay all applicable federal, state and local taxes based on your provision of Rideshare Services and any payments received by you.

6.2.      You must be able to provide satisfactory verification of your identity to the Organizer or Rider as the Driver that was matched with the Organizer or Rider. Unless required by law, regulation, or ordinance, you are not required to wear a Ziphawk-branded apparel, but such items may be available to you. Nothing in this Agreement will limit your right to display your own business name, logo or colors on your vehicle or your apparel. You may not misrepresent to the public that you are using the Ziphawk Platform to provide Rideshare Services if you are not actually using the Platform at the time the Rideshare Services are provided.

6.3.      By using the Platform to provide Rideshare Services, you consent to and hereby authorize Ziphawk (directly or through a service provider) to collect, use, store, and share certain driving and other location-based data while the Application is open or being used as set forth in the terms of this Agreement or other Ziphawk policy. During a ride, you must not interfere with the operation of the Platform or disable the collection of location-based information from your mobile device.

6.4.      By accepting a ride request from an Organizer, you are entering into an agreement with the Organizer to transport the Rider(s) to a predetermined drop off location. You must transport Rider(s) directly to the predetermined drop-off location selected by the Organizer.

6.5.      To provide Rideshare Services, Drivers must satisfy the below requirements. Drivers must be able to provide verification of the same to Ziphawk upon request.

1. Drivers must be twenty-one (21) years of age.

1. Drivers must hold a valid license to operate motor vehicles in the United States. Drivers over the age of twenty-three must have been licensed to drive in the United States for at least one year at the time that such Driver seeks access to the Ziphawk Platform for the purpose of providing Rideshare Services. Drivers under the age of twenty-three must have been licensed to drive in the United States for at least three years at the time that such Driver seeks access to the Ziphawk Platform for the purpose of providing Rideshare Services.

1. Drivers must have lawful access to a vehicle that complies with all vehicle requirements set forth in this Agreement or any other Ziphawk guidelines.

1. Drivers must hold a valid automobile insurance policy. Drivers must be named on the policy as the insured party.

1. Ziphawk will conduct a background check, including criminal history and driving records, of all Drivers seeking access to the Ziphawk Platform for the purpose of providing Rideshare Services. Drivers will only be authorized to provide Rideshare Services, or use the Platform for such purposes, should the results of a Driver’s background check meet Ziphawk’s standards, to be determined at Ziphawk’s sole discretion. If Drivers seek authorization to transport minor Riders, the background check for such Drivers will also include fingerprinting.

1. Drivers must have a valid Social Security Number and provide the same to Ziphawk upon request.

6.6.      All vehicles used by Drivers to provide Rideshare Services (“Driver Vehicles”) must satisfy the below requirements. Drivers must be able to provide verification of the same to Ziphawk upon request.

1. All Driver Vehicles must have four (4) doors, at least five (5) working seatbelts, and the capacity to transport a minimum of four (4) Riders.

1. Driver Vehicles must be twelve years old or newer, as calculated from the vehicle’s model-year.

1. The title to a Driver Vehicle may not be salvaged, reconstructed, or rebuilt.

1. Driver Vehicles must display valid license plates with proof of current vehicle registration.

1. Cosmetic damage, missing pieces, commercial branding, and taxi-cab indicia are not permitted for Driver Vehicles.

1. Should Drivers choose to provide Rideshare Services using a Driver Vehicle not owned by the Driver, the Driver must be listed as an insured party on the insurance policy for that Driver Vehicle. Ziphawk will not approve a Driver Vehicle if the Driver’s name is not listed on the insurance document for the vehicle.

1. Drivers may not use rental vehicles to provide Rideshare Services.

7. PRICING AND PAYMENT.

7.1.      Ziphawk does not pay Drivers for Rideshare Services that Drivers provide while using the Ziphawk Platform. As an Organizer, you understand that Drivers provide Rideshare Services directly to you and that your request or use of Rideshare Services may result in charges to you (“Charges”). Charges include all applicable fees, tolls, surcharges, and taxes as set forth in the Pricing and Payment Terms.

7.2.      You expressly authorize Ziphawk to charge the credit card or debit card associated with your account (“Payment Method”) for all applicable Charges. If your primary payment method is determined to be expired, invalid or otherwise not able to be charged, you agree that Ziphawk may use a secondary payment method in your Ziphawk Account, if available. In addition to these Charges, you may elect to pay your Driver a tip. Ziphawk has the authority and reserves the right to determine and modify pricing by posting applicable pricing terms to your market’s pricing page or quoting you a price for a specific ride at the time you make a request. You are responsible for reviewing the applicable pricing terms and shall be responsible for all Charges incurred under your Account regardless of your awareness of such Charges. You acknowledge and agree that Charges applicable in certain geographical areas may increase substantially during times of high demand. Charges paid by you are final and non-refundable, unless otherwise determined by Ziphawk.

7.2.      Ziphawk may from time to time provide certain Platform Users with promotional offers and discounts that may result in different amounts charged for the same or similar services obtained through the use of the Platform or Rideshare Services, and you agree that such promotional offers and discounts, unless also made available to you, will have no bearing on your use of the Platform, Rideshare Services, or the Charges applied to you.

7.3.      If you are a Driver, you will receive payments from Organizers for your Rideshare Services subject to the Pricing and Payment Terms. Ziphawk will collect payments owed to you by Organizers and other third parties as your limited collection agent and you agree that receipt of such payments by Ziphawk satisfies the payer’s obligation to you. Ziphawk reserves the right to adjust or withhold all or a portion of any Charges, including payment for your Rideshare Services, or other payment owed to you (except tips) to satisfy any fees or other charges associated with your use of the Ziphawk Platform.

7.4.      Organizers will be responsible for the cost of repair for damage to, or necessary cleaning of, vehicles and property resulting from use of the Rideshare Services under your Ziphawk Account in excess of normal “wear and tear” damages and necessary cleaning (“Repair or Cleaning”). In the event that a Repair or Cleaning request is verified by Ziphawk, at Ziphawk’s reasonable discretion, Ziphawk reserves the right to facilitate payment for the reasonable cost of such Repair or Cleaning using the payment method designated in your Ziphawk Account. Such amounts will be transferred by Ziphawk to any applicable third parties and are non-refundable.

8. INTELLECTUAL PROPERTY OWNERSHIP.

8.1.      All intellectual property rights in the Ziphawk Platform will be owned by Ziphawk absolutely and in their entirety. These rights include database rights, copyright, design rights (whether registered or unregistered), trademarks (whether registered or unregistered), and other similar rights wherever existing in the world, together with the right to apply for protection of the same. All other trademarks, logos, service marks, company or product names set forth in the Ziphawk Platform are the property of their respective owners. You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information (“Submissions”) provided by you to us are non-confidential and will become the sole property of Ziphawk. Ziphawk will own exclusive rights, including all intellectual property rights, and will be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.

8.2.      ZIPHAWK and other Ziphawk logos, designs, graphics, icons, scripts and service

names are registered trademarks, trademarks or trade dress of Ziphawk in the United States and/or other countries (collectively, the “Ziphawk Marks”). If you provide Rideshare Services as a Driver, Ziphawk grants to you, during the term of this Agreement, and subject to your compliance with the terms and conditions of this Agreement, a limited, revocable, non-exclusive license to display and use the Ziphawk Marks solely on Ziphawk stickers, decals, or any other Ziphawk-branded items provided by Ziphawk directly to you in connection with providing the Rideshare Services (“License”). The License is non-transferable and non-assignable, and you may not grant to any third party any right, permission, license or sublicense with respect to any of the rights granted hereunder without Ziphawk’s prior written permission, which it may withhold in its sole discretion. The Ziphawk logo (or any Ziphawk Marks) may not be used in any manner that is likely to cause confusion, including but not limited to: use of a Ziphawk Mark in a domain name or Ziphawk referral code, or use of a Ziphawk Mark as a social media handle or name, avatar, profile photo, icon, favicon, or banner. You may identify yourself as a Driver on the Ziphawk Platform, but may not misidentify yourself as Ziphawk, an employee of Ziphawk, or a representative of Ziphawk.

            8.3.      You acknowledge that Ziphawk is the owner and licensor of the Ziphawk Marks,

including all goodwill associated therewith, and that your use of the Ziphawk logo (or any Ziphawk Marks) will confer no interest in or ownership of the Ziphawk Marks in you but rather inures to the benefit of Ziphawk. You agree to use the Ziphawk logo strictly in accordance with Ziphawk’s trademark usage guidelines, as may be provided to you and revised from time to time, and to immediately cease any use that Ziphawk determines to nonconforming or otherwise unacceptable.

8.4.      You agree that you will not: (1) create any materials that use the Ziphawk Marks or any derivatives of the Ziphawk Marks as a trademark, service mark, trade name or trade dress, other than as expressly approved by Ziphawk in writing; (2) use the Ziphawk Marks in any way that tends to impair their validity as proprietary trademarks, service marks, trade names or trade dress, or use the Ziphawk Marks other than in accordance with the terms, conditions and restrictions herein; (3) take any other action that would jeopardize or impair Ziphawk’s rights as owner of the Ziphawk Marks or the legality and/or enforceability of the Ziphawk Marks, including, challenging or opposing Ziphawk’s ownership in the Ziphawk Marks; (4) apply for trademark registration or renewal of trademark registration of any of the Ziphawk Marks, any derivative of the Ziphawk Marks, any combination of the Ziphawk Marks and any other name, or any trademark, service mark, trade name, symbol or word which is similar to the Ziphawk Marks; (5) use the Ziphawk Marks on or in connection with any product, service or activity that is in violation of any law, statute, government regulation or standard.

8.5.      Violation of any provision of this License may result in immediate termination of

the License, in Ziphawk’s sole discretion, a takedown request sent to the appropriate ISP, or social media platform, or a Uniform Domain-Name Dispute-Resolution Policy Proceeding (or equivalent proceeding). If you create any materials (physical or digital) bearing the Ziphawk Marks (in violation of this Agreement or otherwise), you agree that upon their creation Ziphawk exclusively owns all right, title and interest in and to such materials, including any modifications to the Ziphawk Marks or derivative works based on the Ziphawk Marks or Ziphawk copyrights. You further agree to assign any interest or right you may have in such materials to Ziphawk, and to provide information and execute any documents as reasonably requested by Ziphawk to enable Ziphawk to formalize such assignment.

            8.6.      If you believe, in good faith, that any materials on the Ziphawk Platform infringe

upon your copyrights, please view our DMCA and copyright policy for information regarding how to make a copyright complaint.

9. DISCLAIMERS.

9.1.      The following disclaimers are made on behalf of Ziphawk, its officers, employees, directors, shareholders, affiliates, agents, and licensors (collectively, the “Covered Parties”).

9.2.      Ziphawk does not provide transportation services, and Ziphawk is not a transportation carrier. Ziphawk is not a common carrier or public carrier. It is up to the Driver to decide whether or not to offer a ride to a Rider contacted through the Ziphawk Platform, and it is up to the Rider to decide whether or not to accept a ride from any Driver contacted through the Ziphawk Platform. We cannot ensure that a Driver or Rider will complete an arranged transportation service. We have no control over the quality or safety of the transportation that occurs as a result of the Rideshare Services.

9.3.      The Ziphawk Platform is provided on an “as is” basis and without any warranty or condition, express, implied or statutory. We do not guarantee and do not promise any specific results from use of the Ziphawk Platform or the Rideshare Services, including the ability to provide or receive Rideshare Services at any given location or time. To the fullest extent permitted by law, we specifically disclaim any implied warranties of title, merchantability, fitness for a particular purpose, and non-infringement. Some states do not allow the disclaimer of implied warranties, so the foregoing disclaimer may not apply to you.

9.4.      We do not warrant that your use of the Ziphawk Platform or Rideshare Services will be accurate, complete, reliable, current, secure, uninterrupted, always available, or error- free, or will meet your requirements, that any defects in the Ziphawk Platform will be corrected, or that the Ziphawk Platform is free of viruses or other harmful components. We disclaim liability for, and no warranty is made with respect to, connectivity and availability of the Ziphawk Platform or Rideshare Services.

9.5.      We cannot guarantee that each Driver, Rider, or Organizer is who he or she claims to be. Please use common sense when using the Ziphawk Platform and Rideshare Services, including looking at the photos of the Driver, Rider, or Organizer you have matched with to make sure it is the same individual you see in person. Please note that there are also risks of dealing with underage persons or people acting under false pretense, and we do not accept responsibility or liability for any content, communication, or other use or access of the Ziphawk Platform by persons under the age of 18 in violation of this Agreement. We encourage you to communicate directly with each potential Driver, Organizer, or Rider prior to engaging in an arranged transportation service.

9.6.      Ziphawk is not responsible for the conduct, whether online or offline, of any user of the Platform or Rideshare Services. You are solely responsible for your interactions with other Platform Users and Riders. We do not procure insurance for, nor are we responsible for, personal belongings left in the car by Drivers or Riders. By using the Ziphawk Platform and participating in the Rideshare Services, you agree to accept such risks and agree that Ziphawk is not responsible for the acts or omissions of Platform Users or Riders on the Ziphawk Platform or participating in the Rideshare Services.

9.7.      You are responsible for the use of your Ziphawk Account and Ziphawk expressly disclaims any liability arising from the unauthorized use of your Ziphawk Account. Should you suspect that any unauthorized party may be using your Account or you suspect any other breach of security, you agree to notify us immediately.

9.8.      Location data provided by the Ziphawk Platform is for basic location purposes only and is not intended to be relied upon in situations where precise location information is needed or where erroneous, inaccurate or incomplete location data may lead to death, personal injury, property or environmental damage. Neither Ziphawk, nor any of its content providers, guarantees the availability, accuracy, completeness, reliability, or timeliness of location data tracked or displayed by the Ziphawk Platform. Any of your Information, including geolocational data, you upload, provide, or post on the Ziphawk Platform may be accessible to Ziphawk and certain Platform Users.

9.9.      PLATFORM USERS ARE NOT COVERED PARTIES WITHIN THE MEANING OF THESE TERMS. WE DO NOT CONTROL OR HAVE THE RIGHT TO CONTROL PLATFORM USERS EXCEPT TO THE EXTENT EXPRESSLY SET FORTH IN THESE OR ANY APPLICABLE SUPPLEMENTAL TERMS OR AS REQUIRED BY APPLICABLE STATE OR FEDERAL LAW, REGULATION, OR ORDINANCE. WE ARE NOT RESPONSIBLE FOR THE AVAILABILITY OF OR PERFORMANCE OF RIDESHARE SERVICES PROVIDED BY DRIVERS. WE DO NOT GUARANTEE ORGANIZERS OR RIDERS THAT ANY REQUEST FOR RIDESHARE SERVICES WILL BE ACCEPTED BY DRIVERS OR THAT DRIVERS WILL RECEIVE ANY PARTICULAR NUMBER OF RIDE REQUESTS BY ORGANIZERS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE COVERED PARTIES ARE NOT LIABLE FOR THE ACTS, ERRORS, OMISSIONS, REPRESENTATIONS, WARRANTIES, OR NEGLIGENCE OF ANY PLATFORM USERS OR RIDERS, OR FOR ANY PERSONAL INJURIES, DEATH, PROPERTY DAMAGE, OR OTHER DAMAGES OR EXPENSES RESULTING THEREFROM. WE DO NOT REPRESENT OR ENDORSE, AND WILL NOT BE RESPONSIBLE FOR, YOUR ABILITY OR INABILITY TO ARRANGE FOR OR PROVIDE RIDESHARE SERVICES USING THE ZIPHAWK PLATFORM. ZIPHAWK WILL NOT BE LIABLE FOR ANY DELAY IN OR FAILURE TO PERFORM ANY RIDESHARE SERVICES.

10. INDEMNITY.

10.1.    You agree to indemnify and hold harmless the Covered Parties against any and all claims, damages, losses, costs, liabilities, and expenses or fees (including reasonable attorneys’ fees), of any kind, relating to or arising out of: (i) your use of the Ziphawk Platform or Rideshare Services; (ii) your (or in the case of Organizers, your Riders’) violation or breach of any provision of these terms, any additional or supplemental rules or policies relating to the Platform or Rideshare Services, or any applicable law or regulation, whether or not referenced herein; (iii) your violation of any rights of any third party; (iv) your use of, or inability to use, the Ziphawk Platform to arrange for or provide Rideshare Services, or for any reason.

10.2.    Ziphawk reserves the right, at its sole discretion and expense, to assume the exclusive defense of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Ziphawk in asserting any available defenses. This provision does not require you to indemnify any of the Covered Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, suppression, or omission

11. LIMITATION OF LIABILITY.

11.1.    YOU UNDERSTAND AND AGREE THAT IN NO EVENT WILL THE COVERED PARTIES BE LIABLE UNDER ANY THEORY OF LIABILITY (WHETHER IN CONTRACT, TORT, STATUTORY, OR OTHERWISE) FOR FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, CONSEQUENTIAL, OR INDIRECT DAMAGES (INCLUDING DAMAGES FOR DELETION, CORRUPTION, LOSS OF DATA, LOSS OF PROGRAMS, FAILURE TO STORE ANY INFORMATION OR OTHER CONTENT MAINTAINED OR TRANSMITTED BY THE ZIPHAWK PLATFORM, SERVICE INTERRUPTIONS, OR FOR THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES) ARISING OUT OF OR IN CONNECTION WITH THE ZIPHAWK PLATFORM, THE RIDESHARE SERVICES, OR THIS AGREEMENT, HOWEVER ARISING (INCLUDING NEGLIGENCE), EVEN IF WE OR OUR AGENTS OR REPRESENTATIVES KNOW OR HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

11.2.    THE ZIPHAWK PLATFORM MAY BE USED BY YOU TO REQUEST AND SCHEDULE TRANSPORTATION, GOODS, OR OTHER SERVICES WITH THIRD-PARTY PROVIDERS, BUT YOU AGREE THAT ZIPHAWK HAS NO RESPONSIBILITY OR LIABILITY TO YOU RELATED TO ANY TRANSPORTATION, GOODS OR OTHER SERVICES PROVIDED TO YOU BY THIRD-PARTY PROVIDERS OTHER THAN AS EXPRESSLY SET FORTH IN THIS AGREEMENT.

11.3.    CERTAIN JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.

12. DISPUTE RESOLUTION.

            12.1.    Dispute Resolution Process and Procedure.

12.1.1.       IF ANY CONTROVERSY OR CLAIM ARISES OUT OF OR RELATES TO THESE TERMS OR THE BREACH OF THESE TERMS, THE PARTIES WILL ATTEMPT IN GOOD FAITH TO NEGOTIATE A SOLUTION TO THEIR DIFFERENCES. IF NEGOTIATION DOES NOT RESULT IN A RESOLUTION WITHIN THIRTY (30) DAYS FROM THE DATE WHEN ONE PARTY FIRST NOTIFIES THE OTHER OF THE CONTROVERSY OR CLAIM THEN THE CLAIM OR CONTROVERSY MUST BE MEDIATED PRIOR TO A PARTY SEEKING A LEGAL OR EQUITABLE REMEDY. SAID MEDIATOR MUST BE A LICENSED ATTORNEY. MEDIATION WILL COMMENCE NO LATER THAN THIRTY (30) DAYS FOLLOWING A PARTY’S NOTICE TO THE OTHER PARTY REQUESTING MEDIATION. EACH PARTY WILL BEAR ITS OWN COSTS IN THE MEDIATION.

12.1.2.       FOLLOWING MEDIATION, IF UNSUCCESSFUL, ANY CLAIM OR CONTROVERSY ARISING OUT OF OR RELATING TO THIS AGREEMENT THAT IS AMONG OR BETWEEN THE PARTIES HERETO WILL BE FINALLY AND EXCLUSIVELY SETTLED BY ARBITRATION – SO THAT THE PARTIES HERETO WAIVE THEIR RIGHT TO BRING ANY LEGAL OR EQUITABLE JUDICIAL ACTION (EXCEPT FOR ACTIONS SEEKING INJUNCTIONS AS DESCRIBED HEREIN) WITH RESPECT TO ANY SUCH CLAIM OR CONTROVERSY AND ALL LOSSES ASSOCIATED THEREWITH. THE ARBITRATION WILL BE HELD BEFORE ONE ARBITRATOR UNDER THE COMMERCIAL ARBITRATION RULES OF THE AMERICAN ARBITRATION ASSOCIATION (“AAA”) IN FORCE AT THAT TIME. THE ARBITRATION WILL BE VENUED IN [CITY/COUNTY, STATE]. THE ARBITRATOR WILL BE SELECTED PURSUANT TO THE AAA RULES. SHOULD NO AAA RULE REGARDING THE SELECTION OF AN ARBITRATOR BE IN EFFECT, ZIPHAWK WILL SELECT AN ARBITRATOR FROM A PANEL OF ARBITRATORS ACCEPTABLE TO THE PARTIES INVOLVED. ALL ARBITRATION COSTS, INCLUDING THE FILING FEES, WILL BE PAID BY THE NON-PREVAILING PARTY. TO BEGIN THE ARBITRATION PROCESS, A PARTY MUST MAKE A WRITTEN DEMAND THEREFOR.

12.1.3.       ANY JUDGMENT UPON THE AWARD RENDERED BY THE ARBITRATORS MAY BE ENTERED IN ANY COURT OF COMPETENT JURISDICTION IN [CITY/COUNTY, STATE].

12.1.4.       THIS AGREEMENT PROVIDES THAT UPON FAILURE OF MEDIATION ALL CLAIMS, CONTROVERSIES, AND DISPUTES BETWEEN AND AMONG THE PARTIES HERETO WILL BE RESOLVED BY BINDING ARBITRATION. THUS, THE PARTIES HERETO GIVE UP THEIR RIGHTS TO GO TO COURT TO ASSERT OR DEFEND THEIR RIGHTS. THUS, THE RIGHTS OF THE PARTIES HERETO WILL BE DETERMINED BY NEUTRAL ARBITRATORS AND NOT A JUDGE OR JURY. THE PARTIES HERETO ARE ENTITLED TO A FAIR HEARING, BUT THE ARBITRATION PROCEDURES ARE SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. ARBITRATOR DECISIONS ARE ENFORCEABLE AS ANY COURT ORDER AND ARE SUBJECT TO VERY LIMITED JUDICIAL REVIEW.

12.1.5.       SHOULD A DISPUTE ARISE, AND SHOULD THE ARBITRATION PROVISIONS HEREIN BECOME INAPPLICABLE OR UNENFORCEABLE, THE PARTIES HERETO AGREE THAT JURISDICTION OVER, AND VENUE OF, ANY SUIT WILL BE EXCLUSIVELY IN THE STATE AND FEDERAL COURTS SITTING IN [CITY/COUNTY, STATE].

12.1.6.       NOTWITHSTANDING THE CONTRARY PROVISIONS OF THIS AGREEMENT, A PARTY HERETO MAY JUDICIALLY SEEK EQUITABLE RELIEF IN THE FORM OF INJUNCTIONS AND WILL NOT BE REQUIRED TO SEEK SUCH THROUGH ARBITRATION OR MEDIATION.

12.1.7.       Your responsibility to pay any AAA filing, administrative, and arbitrator fees will be solely as set forth in the AAA Rules.

            12.2.    Section-Specific Modifications.

12.2.1.       Notwithstanding the terms of the modification-related provisions below, if Ziphawk changes this “Dispute Resolution” section after the date you first accepted the terms of this Agreement (or accepted any subsequent changes to the terms of this Agreement), you may reject any such changes by providing Ziphawk with written notice of such rejection from the email address associated with your Account to: [email protected], within 30 days of the date such change became effective, as indicated by the “Last Update” date above.

12.2.2.       In order to be effective, the notice must include your full name and clearly indicate your intent to reject changes to this “Dispute Resolution” section.

12.2.3.       By rejecting changes, you are agreeing that you will arbitrate any dispute between you and Ziphawk in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted the terms of this Agreement (or accepted any subsequent changes to the terms of this Agreement).       

13. MISCELLANEOUS.

            13.1.    Governing Law.

This Agreement and any disputes arising under or related to this Agreement, the Rideshare Services, the Ziphawk Platform, our Privacy Policy, or any supplemental or additional terms relating to the Platform or Rideshare Services will be governed by the laws of the State of [STATE] without reference to its conflict of law principles. You agree to submit to the exclusive personal jurisdiction and venue of the courts located within [STATE] for any legal proceeding arising from same, regardless of the cause of action or which party has initiated the legal proceeding.

            13.2.    Relationship of the Parties.

13.2.1.       As a Driver on the Ziphawk Platform, you acknowledge and agree that you and Ziphawk are in a direct business relationship, and the relationship between the parties under this Agreement is solely that of independent contracting parties. You and Ziphawk expressly agree that (1) this is not an employment agreement and does not create an employment relationship between you and Ziphawk; and (2) no joint venture, franchisor- franchisee, partnership, or agency relationship is intended or created by this Agreement. You have no authority to bind Ziphawk, and you undertake not to hold yourself out as an employee, agent or authorized representative of Ziphawk.

13.2.2.       Ziphawk does not, and will not be deemed to, direct or control Platform Users generally or in your performance under this Agreement specifically, including in connection with your provision of Rideshare Services, your acts or omissions, or your operation and maintenance of your vehicle. Platform Users retain the sole right to determine when, where, and for how long Platform Users will utilize the Ziphawk Platform. Platform Users retain the option to accept or to decline or ignore a Rider’s request for Rideshare Services via the Ziphawk Platform, or to cancel an accepted request for Rideshare Services via the Ziphawk Platform, subject to Ziphawk’s then-current cancellation policies. With the exception of any signage required by law or permit/license rules or requirements, Ziphawk will have no right to require you to: (a) display Ziphawk’s names, logos or colors on your vehicle(s); or (b) wear a uniform or any other clothing displaying Ziphawk’s names, logos or colors. You acknowledge and agree that you have complete discretion to provide Rideshare Services, utilize the Rideshare Services, or otherwise engage in other business or employment activities.

            13.3.    Severability.

If any clause or provision set forth in this Agreement is determined to be illegal, invalid, or unenforceable under present or future law, the clause or provision will be deemed to be deleted without affecting the enforceability of all remaining clauses or provisions.

            13.4.    Modification.

Ziphawk reserves the right to modify the terms and conditions of this Agreement,

such modifications will be binding on you only upon your acceptance of the modified Agreement. Ziphawk reserves the right to modify any information on pages referenced in the hyperlinks from this Agreement from time to time, and such modifications will become effective upon posting. Continued use of the Ziphawk Platform or Rideshare Services after any such changes will constitute your consent to such changes. Unless material changes are made to the arbitration provisions herein, you agree that modification of this Agreement does not create a renewed opportunity to opt out of arbitration (if applicable).

            13.4.    Waiver.

No delay or failure by Ziphawk to enforce any of the terms and conditions set forth in this Agreement will constitute a waiver of any of our rights under this Agreement. Neither the receipt of any funds by Ziphawk nor the reliance of any person on our actions will be deemed to constitute a waiver of any part of this Agreement. Only a specific, written waiver signed by an authorized representative of Ziphawk will have any legal effect