Wingz Inc. (“Wingz”) maintains an on-line enabled software-as-a-service platform (“Wingz Software”) where persons seeking transportation (“Passenger Clients”) can connect directly with Driver Clients (“Driver Clients”) to facilitate and book pre-arranged transportation in the Driver Clients’ vehicle(s) and which enables payment of fees for that transportation (“Services”). Access to the Wingz Software is obtained through a mobile Internet Application (“Wingz Application” or the “Application”) owned and operated by Wingz (“Wingz” “we,” or “us”) and licensed to the Driver Clients. In order to participate as a Wingz Driver Client (“you”), you become a licensed user of Wingz Software-as-a-Service and agree to these Terms and Conditions for authorized users of that software (“Wingz Software Client”). Subject to these Terms and Conditions between Wingz and you, as well as compliance with the Wingz Community Guidelines (which are available on the Wingz website at https://wingz.com/community-guidelines), you will have access to the Application to receive and review requests for service from Passenger Clients and to collect payment from those Passenger Clients.
PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY. THESE TERMS AND CONDITIONS CONTAIN A MANDATORY INDIVIDUAL ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION THAT REQUIRES THE USE OF BINDING ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES.
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
Acknowledgment and Acceptance of Software-as-a-Service Terms and Conditions
These Terms and Conditions constitute an electronic contract that sets out the legally binding terms of the relationship between Wingz and you in your capacity as a Wingz Driver Client and as a Wingz Software Client. Please read these Terms and Conditions carefully.
Wingz reserves the right to change, modify, remove, add to, and terminate these Terms and Conditions or any provision thereof, at any time, at its sole discretion, effective upon making the modified provisions available on the Application, with or without your notice or consent. You are responsible for regularly reviewing these Terms and Conditions. Continued use of the Application after any such changes are made to these Terms and Conditions shall constitute your consent to such changes.
Use of the Application is permitted only by individuals who can form legally binding contracts under applicable law and who meet all applicable regulatory requirements for providing passenger transportation services in a personal vehicle. Accordingly, you must be at least 21 years old, have had for at least one year a valid license to drive a Passenger vehicle in the jurisdiction in which you are providing Services, and be legally authorized to work in the United States to become a Driver Client. You must also not be legally barred from driving a ride-sharing vehicle per the requirements of any applicable law, regulation or ordinance (for example, laws or regulations prohibiting individuals convicted of certain crimes from driving a vehicle through a Transportation Network Company (“TNC”). If you do not meet these legal qualifications, you should not apply to become (or, if applicable, you must cease engaging as) a Driver Client or Software Client. All Drivers used to perform services under these Terms and Conditions must also satisfy the credentialing and training requirements used by the relevant state and/or federal agencies or departments in the state(s) in which the Driver performs services. Thus, if your training or credentialing qualifications lapse, you may be suspended from the Platform.
By accessing the Application, you accept these Terms and Conditions and agree to the terms, conditions, and noticescontained and/or referenced herein.
Capitalized terms are defined as set forth below or elsewhere in the Agreement.
1.1 “Services” means the services specified in a Wingz Request for services to be provided by a Driver Client to a Passenger Client; specifically, pre-arranged transportation services using the Application to connect Passenger Clients with Driver Clients who will provide transportation services using the Driver Client’s personal vehicle.
1.2 “Wingz Request” means a notice provided, through the Application, to one or more Driver Clients, which includes a description of the Services to be optionally provided by the Driver Client, the time by which at which theservices are to be provided (the “Wingz Completion Date”) and the rate of payment associated with the Wingz Request(the “Payment”). An open request is a request for Services that has not yet been filled (“Open Request”). Driver Clients can use the Application to review Open Requests and optionally decide to accept Open Requests. Once a Driver Client has accepted a Wingz Request pursuant to Section 2, the Wingz Request will become a “Wingz Engagement.”
1.3 “Wingz Mobile Application” or “Application” means the proprietary software application that Wingz licenses toPassenger Clients and Driver Clients to facilitate the provision of Services.
2. DRIVER CLIENT’S OBLIGATIONS
2.1 Background Checks. As part of your initial registration with Wingz, you agree to immediately execute a writtenconsent for a background check (which may include but not be limited to a criminal history check, motor vehicle record check, and drug and/or alcohol screening) to be conducted by an independent third party. Subject to satisfactory completion of any and all required background checks (which will be conducted in compliance with all applicable laws) and agreement to the terms herein, you will be eligible to use the Wingz Mobile Application to view and accept Wingz Requests. Such background checks also may be conducted at any time while providing Services under these Terms and Conditions.
2.2 Automobile Insurance. You agree to maintain at your cost automobile insurance valid for transporting passengers arranged through a transportation network company and a valid driver’s license. You are advised that personal automobile insurance policies will normally not provide coverage when a Driver Client uses a vehicle in connection with a transportation network company's online-enabled application or platform and that personal automobile insurance policies will not normally provide collision or comprehensive coverage for damage to the vehicle used by the Driver Client when a Driver Client is giving a ride or on his way to go pick up a Passenger Client who requested a ride on Wingz. While Wingz currently maintains a commercial automobile insurance policy covering Passenger Clients of up to at least $1 Million per accident, you understand and agree that Wingz’s commercial automobile insurance policy does not provide coverage to you or your vehicle(s) in the event of anaccident or other loss. You further agree that, in the event of an accident while providing services to a Passenger Client, you will comply with any applicable law, ordinance, or regulation; make any required contact with or report to your insurance carrier; and have available for law enforcement inspection evidence of your personal insurance and Wingz’s commercial insurance.
2.3 Other Insurance. You acknowledge that you are a Driver Client and as such an independent contractor, not an employee of Wingz. As such, unless otherwise required by applicable law, ordinance or regulation, you are not covered by any insurance that may be provided by Wingz to its employees, including, without limitation, health insurance, workers’ compensation insurance, general liability insurance, and automobile liability insurance. As an independent contractor, you are solely and exclusively responsible for and agree to provide your own insurance. Specifically, in the event that you are injured while in the course and scope of an engagement sourced through Wingz, you acknowledge, understand and agree that you will not be covered by any workers’ compensation insurance coverage that Wingz may provide to its employees. Further, in the event that your actions cause an injury to a third party while you are in the course and scope of an engagement sourced through Wingz, you acknowledge and understand that you will not be covered by any general liability or automobile liability insurance coverage that Wingz may have, and that Wingz is not making any commitment to defend and/or indemnify you in such circumstances, and specifically denies such obligation.
2.4 Vehicle Used To Provide Services. In providing Services to Passenger Clients, you agree consistent with applicable law, ordinance or regulation to use street-legal coupes, sedans, hatchbacks, convertibles, or light-dutyvehicles including vans, minivans, sport utility vehicles (SUVs) and pickup trucks and that such vehicles are not modified significantly from factory specifications (e.g., no stretch vehicles). You also agree that you will not transport more than seven (7) passengers on any one ride. You further agree that your vehicle used to provide Services to Passenger Clients 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 that any and all applicable safety recalls have been or will be remedied per manufacturer instructions. You will be solely responsible for any and all liability which results from or is alleged as a result of the operation of the vehicle you use to transport Passenger Clients, including, but not limited to personal injuries, death and property damages.
2.5 Compliance With Non-Discrimination Requirements. You represent that you understand and agree to comply with all legal requirements to provide services on a nondiscriminatory basis, including refraining from harassment, with respect to sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation and any other basis protected by applicable law.
2.6 Vehicle Inspection. You agree to conduct a vehicle inspection of the vehicle you intend to use to provide services to Wingz’s Passenger Clients, to the extent required by applicable law, regulation or ordinance. Any legally required inspection must be satisfactorily completed before you may provide driving services to Passenger Clients.
2.7 Obey All Laws. You agree to follow all applicable laws, ordinances and regulations when providing services to a Passenger Client, including but not limited to obeying all traffic laws and regulations.
2.8 Zero Tolerance Intoxicating Substance Policy. Consistent with its legal obligations, Wingz has adopted a Zero Tolerance Intoxicating Substances Policy, a copy of which will be provided to you during your product orientation. You understand and agree that Passenger Clients will be encouraged to report to Wingz any violation of the policy and that you will be deactivated from providing services to Passenger Clients until completion of Wingz’s investigation of the incident and that these Terms and Conditions may be terminated if Wingz’s investigation determines you violated the policy.
2.9 Accepting Open Requests. By registering to become a Driver Client and accepting an Open Request, you agree to use your best efforts to perform the Wingz Engagement such that the Services are satisfactory to the Passenger Client, for whom the Open Request was created. Once a Driver Client has accepted a Wingz Request, the Open Request will no longer be available for performance by other Driver Clients who received the Open Request. By accepting an Open Request, you are entering into a binding legal agreement to provide the Services for the Payment specified in the Open Request. Do not accept an Open Request unless you are sure that you understand what you are being asked to deliver, can get to and from the Passenger Client’s location safely, and can deliver the Services in the requested timeperiod.
3. SOFTWARE CLIENT OBLIGATIONS
Wingz and Client desire to enter into a supplier relationship that grants Client the right to access Wingz’s technology for Client’s Passenger Clients, also known as Riders.
3.1 Rights. Subject to the terms of these Terms and Conditions, Wingz hereby grants Client the non-exclusive, revocable right to use the Wingz Software to find and collect payment from clients willing to pay for rides. These rights will terminate upon suspension or termination of Client’s status as a Driver Client.
3.2 Network. Client shall have the right to use Wingz’s Software and functionalities for the acquisition of and communications with Client’s Rider Passenger Clients. These Terms and Conditions do not limit or otherwise restrict your ability to use other software platforms to provide similar Services.
4. INDEPENDENT CONTRACTOR RELATIONSHIP
Wingz provides motivated individuals with the opportunity to establish and grow their own business. You are not required to work any particular schedule, expected to work a certain amount of hours, or even provide services at all.You are an independent contractor who decides when and if you want to provide transportation to Passenger Clients through use of the Wingz Software. You are free to work with other companies if you so choose. As an independent contractor, you rely on your own skill, education, and training in performing under these Terms and Conditions, if you choose to do so; you are solely responsible for your actions and inactions; and you are solely responsible for determining the manner and means by which you provide services to the Passenger Clients you decide to offer services to (subject to these Terms and Conditions). Accordingly, nothing in these Terms and Conditions is intended to or should be construed as creating a partnership, joint venture, agency, or employer-employee relationship between Wingz and you or between the Passenger Client and you. You are not an employee or agent of Wingz or thePassenger Client; you may not act as or represent to any third party that you are an employee or agent of Wingz or the Passenger Client; and you are not authorized, and must not represent to any third party that you are authorized, to make any contract, agreement, obligation, or commitment, or otherwise act, on behalf of Wingz or the Passenger Client. You shall not undertake or allow any actions contrary to the letter and spirit of these Terms and Conditions. Nothing herein should be construed to prevent or prohibit you from performing work for other individuals or entities while performing services pursuant to these Terms and Conditions.
4.1 Benefits and Contributions. You (and your spouse and dependents) are not entitled to or eligible for any benefits that Wingz or other related entities may make available to its employees, such as group insurance, workers’ compensation insurance benefits, stock-options, profit-sharing or retirement benefits. You waive all rights to such benefits, including any right to file a claim for any employee benefits under the Employee Retirement Income Security Act (ERISA), applicable state or local law, or any Wingz policy, practice, procedure, or program. Because you are a Driver Client and an independent contractor, Wingz will not withhold or make payments for income or payroll taxes or socialsecurity, make unemployment insurance or disability insurance contributions, or obtain workers’ compensation insurance on your behalf. If, notwithstanding the foregoing, you are reclassified as an employee of Wingz, or any affiliate of Wingz (“Affiliate”), by the U.S. Internal Revenue Service (“IRS”), the U.S. Department of Labor (“DOL”), an arbitrator, or any other federal, state or foreign court or agency, you agree that you will not, as the result of such reclassification, be entitled to or eligible for, on either a prospective or retrospective basis, any employee benefits under any plans or programs established or maintained by either Wingz or any of its parents, subsidiaries, affiliates or related entities or by the Passenger Client and any related persons or entities.
4.2 Taxes. You are solely responsible for filing all tax returns and submitting all payments as required by any federal,state, local, or foreign tax authority arising from the payment of Payments to you under these Terms and Conditions, and you agree to do so in a timely manner. You agree that you will comply with all applicable federal, state, local, and foreign laws governing self-employed individuals, including laws requiring the payment of taxes, such as income andemployment taxes, and social security, disability and other contributions. To the extent required by the IRS and state or local tax authorities, Wingz will report the Payments paid to you for services rendered as part of Wingzengagements by filing Form 1099-K or 1099-MISC with such tax authorities. You agree to indemnify Wingz and hold Wingz harmless for the cost of any tax liabilities, interest and penalties incurred by Wingz as a result of your failure to pay all applicable taxes in a timely manner.
5.1 Use and Disclosure. From time to time, you may be given access to confidential information in the course ofperforming engagements that you receive through Wingz. During the term of these Terms and Conditions and at alltimes thereafter, you will (a) hold all Confidential Information in strict trust and confidence, (b) refrain from using orpermitting others to use Confidential Information in any manner or for any purpose not expressly permitted or required by these Terms and Conditions, and (c) refrain from disclosing or permitting others to disclose any Confidential Information to any third party without obtaining Wingz’s express prior written consent on a case-by-case basis. “Confidential Information” means any and all information related to Wingz’s or any Passenger Clients or their business (including information about the Application and identity of Passenger Clients, other trade secrets, technical information, business forecasts and strategies, marketing plans, customer and supplier lists, guest lists, personal information about Passenger Clients, personnel information, financial data, and proprietary information of third parties including Passenger Clients) that Wingz and/or the Passenger Client considers to be confidential or proprietary or Wingz has a duty to treat as confidential.
5.2 Exceptions. Your obligations under Sections 5.1 will terminate with respect to any particular information that you can prove, by clear and convincing evidence, (a) you lawfully knew prior to Wingz’s first disclosure to you, (b) a third party rightfully disclosed to you free of any confidentiality duties or obligations, or (c) is, or through no fault of you has become, generally available to the public. Additionally, you will be permitted to disclose Confidential Information to the extent that such disclosure is expressly approved in writing by Wingz, or is required by law or court order, provided that you immediately notify Wingz in writing of such required disclosure and cooperate with Wingz, at Wingz’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure,including filing motions and otherwise making appearances before a court.
5.3 Removal; Return. Upon termination or expiration of these Terms and Conditions, you will promptly (a) return to Wingz or, if so directed by Wingz, destroy all Confidential Information (in every form and medium) relating to the Applications and Passenger Clients who have used the Applications, (b) permanently erase all electronic filescontaining or summarizing any Confidential Information, and (c) certify to Wingz in writing that you have fully complied with these obligations.
6. RESPONSIBILITIES OF WINGZ
Wingz will use its commercially reasonable best efforts to perform the following tasks.
6.1 Fulfillment. Wingz shall provide software-as-a-service enabling Passenger Clients to post scheduled, flat-fee ride requests for optional, not obligatory, acceptance by Driver Client.
6.2 Collection System. Wingz shall provide software-as-a-service to enable Driver Client to collect payments from Riders online.
6.3 Maintenance. Wingz shall provide ongoing maintenance, support and upgrade of Wingz’s Web-based system and mobile applications.
6.4 Support. Wingz shall provide e-mail technical support according to Wingz’s existing standards.
6.5 Product Orientation. As part of its service to Driver Client, Wingz shall provide Product Orientation to Driver Client on the use of Wingz’s software-as-a-service and, per applicable state or local law, ordinance or regulation, safe operation of the vehicle used to provide services to Passenger Clients.
6.6 Magnetic Decal. Wingz shall sell a magnetic decal to Driver Client to place on Driver Client’s vehicle when giving rides (to comply with state or local legal requirements).
7. PRICING, FEES, AND PAYMENT TERMS
Pricing. The Fare for a Passenger Client is determined based upon rates set by Wingz (“Wingz Rate”), or rates set by a partner (“Partner Rate”). You receive the entire Fare, subject to deductions of Wingz’s Platform Fees and any adjustments deemed appropriate by Wingz.
For trips based on a Wingz Rate, the Platform Fees consist of a General Ride Request Platform Fee or a Direct Book Ride Request Platform Fee, which are calculated based on the fee schedule set forth on the Wingz website, available at https://wingz.com/drivers/fees.
For trips based on a Partner Rate, which include non-emergency medical transportation (“NEMT”) trips, the Platform Fees will vary from partner to partner.
The Platform Fees are intended to compensate Wingz for the Passenger Client’s and Driver Client’s use of Wingz’s software and may change in the future upon written notice to you.
When you accept a trip from within the Application, you expressly acknowledge and agree to the Fare amount, which is calculated up front and displayed within the Application, and to operating the Application in accordance with orientation materials provided by Wingz. You also agree that failure to operate the Application in accordance with orientation materials provided by Wingz may result in further adjustments to your share of the Fare as deemed appropriate by Wingz.
7.1 Collection of Fare and Payment. Wingz utilizes a third-party provider to collect from each Passenger Client theFare charged for services provided by you to a respective Passenger Client. The third-party provider shall pay the entire Fare to you, subject to any deductions of the Wingz Platform Fee and any offset for Late Cancellation Fees. You authorize the third-party provider to pay Wingz the applicable Platform Fee and any applicable fees included inthe Fare. You receive payment for the services you provide on a weekly basis. Contact information for the third-party provider shall be provided upon written request.
7.2 Cancellation or No-Show Fees. For trips based on a Wingz Rate, in the event you cancel an accepted Open Request or Direct Booking Request, you authorize Wingz and its third-party provider to apply and deduct a late cancellation fee as outlined in the cancellation and no-show fee schedule set forth on the Wingz website, available at https://wingz.com/drivers/fees. You expressly acknowledge and agree that these potential fees may result in you notgenerating a profit and potentially sustaining loss in providing services under the terms of these Terms and Conditions.
For trips based on a Partner Rate, cancellation or no-show fees, when applicable, will vary from partner to partner.
8. NO CONFLICTS
You represent and warrant that you are not subject to any contract or duty that would be breached by entering into orperforming your obligations under these Terms and Conditions, or any Wingz Engagement, or that is otherwiseinconsistent with these Terms and Conditions or any Wingz Engagement. These Terms and Conditions are not exclusive and do not limit your ability to use your car for other purposes.
9. REPRESENTATIONS AND WARRANTIES
9.1 General. You represent, warrant, and covenant that:
- You have full right, power, and authority to enter into and perform these Terms and Conditions without the consent of any third party (including any of your current or former employers);
- Will fully conform to the specifications, requirements, and other terms in the applicable Wingz Engagementand these Terms and Conditions and will be of a professional and workmanlike quality.
9.2 Indemnification. You will indemnify and hold harmless Wingz and its parents, affiliates, employees, and agents from and against any and all liabilities, losses, damages, costs, and other expenses (including attorney fees and costs associated with litigation) arising from or relating to a breach by you of any representation, warranty, covenant, or obligation in these Terms and Conditions, or arising from or relating to any negligent or intentional act or omission committed by you, in connection with the performance of any Wingz engagement, which act or omission gives rise to any claim for damages against you, Wingz and/or its parents, affiliates, employees or agents. Wingz specifically denies any obligation to defend and/or indemnify you from and against any third party claims made against you arising from any negligent or intentional act or omission committed by you in connection with the performance of any Wingz engagement.
9.3 Warranty Disclaimer. The Application and the Services are provided “as is,” as available and without any warranties or conditions (express or implied, including the implied warranties of merchantability, accuracy, fitness fora particular purpose, title and non-infringement, arising by statute or otherwise in law or from a course of dealing orusage or trade). We disclaim all and make no representations or warranties, of any kind, either express or implied, as tothe quality, identity or reliability of any third party, or as to the accuracy of the postings made on the Application byany third party. We also do not guarantee and do not promise any specific results from use of Wingz and/or the Services. Some states and jurisdictions do not allow for all the foregoing limitations on implied warranties, so to that extent, if any, some or all of the above limitations may not apply to you.
We do not warrant that your use of the Services will be accurate, complete, reliable, current, secure, uninterrupted, always available, or error-free, or will meet your requirements, that any defects in the Services will be corrected, or that the Services are free of viruses or other harmful components. We disclaim liability for, and no warranty is made with respect to, connectivity and availability. We cannot guarantee that each user is at least the required minimum age, nor do we accept responsibility or liability for any content, communication or other use or access of Wingz or the Services by persons in violation of these Terms. We are not responsible or liable in any manner for any content posted on Wingz or in connection with the Service, whether posted or caused by users of the Wingz, by Wingz, by third parties or by any of the equipment or programming associated with or utilized in Wingz or the Services. Although we provide rules for user conduct and postings, we do not control and are not responsible for what users post, transmit or share on Wingz and are not responsible for any offensive, inappropriate, obscene, unlawful or otherwise objectionable content you may encounter on Wingz or in connection with any content. Wingz is not responsible for the conduct, whether online or offline, of any user of Wingz or Services. It also is possible for others to obtain personal information about you due to your use of Wingz or the Services, and that the recipient may use such information in an unauthorized manner. We are not responsible for the use of any personal information that you disclose on Wingz or through the Services. You are solely responsible for your interactions with other users. We reserve the right, but have no obligation, to monitor disputes between you and other users. Please carefully select the type of information that you post on Wingz or through the Services or release to others. We disclaim all liability, regardless of the form of action, for the acts or omissions of other participants or users (including unauthorized users, or “hackers”). Wingz only offers a venue that enables drivers and riders to match with each other. Wingz does not offer transportation services and Wingz is not a transportation company. We are not involved in the actual transportation services between Drivers and Riders. As a result, we have no control over the quality or safety of the transportation that occurs as a result of the Service; nor do we have any control over the truth or accuracy of the of participants’ information listed on Wingz. We cannot ensure that a Rider is who they claim to be or that a Rider will actually complete an arranged service. We reserve the right to change any and all content, software and other items used or contained in Wingz and the Services at any time without notice. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof, or any affiliation therewith, by Wingz or Wingz.
Wingz and the Services may be temporarily unavailable from time to time for maintenance or other reasons. Wingz assumes no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, user communications. Wingz is not responsible for any technical malfunction or other problems of any telephone network or service, computer systems, servers or providers, computer or mobile phone equipment, software, failure of email or players on account of technical problems or traffic congestion on the Internet, on Wingz, on any web site or any combination thereof, including injury or damage to a user’s or to any other person’s computer, mobile phone, or other hardware or software, related to or resulting from using or downloading materials in connection with the Web and/or in connection with the Services.
9.4 Online Content Disclaimer. Opinions, advice, statements, offers, or other information or content made available through the Services, 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. We do not guarantee the accuracy, completeness, or usefulness of any information on the Services and neither do we adopt nor endorse nor are we responsible for the accuracy or reliability of any opinion, advice, or statement made by parties other than us. Under no circumstances will we be responsible for any loss or damage resulting from anyone’s reliance on information or other content posted on the Services, or transmitted to participants. We reserve the right, but we have no obligation, to monitor the materials posted in the public areas of the Services. Notwithstanding this right, users remain solely responsible for the content of the photos, profiles (including your name, image, and likeness), messages, notes, text, information, music, video, advertisements, listings, and other content (the “Content”) that users post in the public areas of the Services and in users’ private e-mail messages. We shall have the right to remove any such material that in our sole opinion violates, or is alleged to violate, the law or these Terms or which might be offensive, illegal, or that might violate the rights, harm, or threaten the safety of users or others. E-mails sent between users and other participants that are not readily accessible to the general public will be treated by us as private to the extent required by applicable law.
Wingz contains links to other web sites (“Third Party Sites”) as well as articles, photographs, text, graphics, pictures, designs, music, sound, video, information, applications, software and other content or items belonging to or originating from third parties (the “Third Party Applications, Software or Content”). Such Third Party Sites and Third Party Applications, Software or Content are not investigated, monitored or checked for accuracy, appropriateness, or completeness by us, and we are not responsible for any Third Party Sites accessed through Wingz or any Third Party Applications, Software or Content posted on, available through or installed from Wingz, including the content, accuracy, offensiveness, opinions, reliability, privacy practices or other policies of or contained in the Third Party Sites or the Third Party Applications, Software or Content. Inclusion of, linking to or permitting the use or installation of any Third Party Site or any Third Party Applications, Software or Content does not imply approval or endorsement thereof by us. If you decide to leave Wingz and access the Third Party Sites or to use or install any Third Party Applications, Software or Content, you do so at your own risk and you should be aware that our terms and policies no longer govern. Please review the applicable terms and policies, including privacy and data gathering practices, of any web site to which you navigate from Wingz or relating to any applications you use or install from Wingz.
10. LIMITATION OF LIABILITY
IN NO EVENT WILL WINGZ OR ITS SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, INSURERS, OR SUPPLIERS BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THESE TERMS AND CONDITIONS, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, LOSS OF BUSINESS OPPORTUNITIES OR LOSS OF GOODWILL, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WINGZ’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THESE TERMS AND CONDITIONS, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE AGGREGATE AMOUNT OF PAYMENTS OWED BY WINGZ FOR WINGZ ENGAGEMENTS PERFORMED UNDER THIS AGREEMENT DURING THE TWELVE-MONTH PERIOD PRIOR TO THE OCCURRENCE OF THE FIRST CLAIM TO GIVE RISE TO LIABILITY UNDER THESE TERMS AND CONDITIONS.
SOME STATES AND JURISDICTIONS DO NOT ALLOW FOR ALL THE FOREGOING EXCLUSIONS ANDLIMITATIONS OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO TO THAT EXTENT, IF ANY, SOME OR ALL OF THESE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
11.1 Termination by You or Wingz. Either Wingz or you may terminate these Terms and Conditions with respect to you and your providing Services hereunder for any reason, or for no reason at all, at any time upon written notice to the other party. Both Wingz and you acknowledge that, other than the aforementioned termination notice, no other actions are necessary for either party to terminate these Terms and Conditions with respect to you and your providing Services hereunder. The basis for termination may include, but is not limited to: (a) you have not received a request forservices within three calendar months; (b) you have not accepted a Wingz Engagement in the previous three calendar months; (c) your material breach of any of your obligations under these Terms and Conditions, which includes but is not limited to failing to comply with the requirements set forth in applicable state or local requirements for Driver Clients using their personal vehicles to provide services arranged through a TNC, your driving a vehicle while under the influence of intoxicating substances, your failure to complete an engagement, your failure to show up when you have accepted an engagement, or your failure to complete the ride to the specifications of the Wingz Request; (d) you are not permitted by applicable law, ordinance, or regulation to be a TNC Driver (and therefore cannot be a Wingz Driver Client) (for example, due to a disqualifying criminal conviction or arrest, license revocation or suspension, or an unacceptable driving record as determined in Wingz’s sole discretion); (e) Wingz’s material breach of any of its obligations under these Terms and Conditions; and (f) any other lawful reason. Wingz shall not be liable for, nor shall you be liable to perform, any Services, payments, or expenses incurred after the receipt of notice of termination, except as set forth expressly in these Terms and Conditions or as otherwise required by law.
11.2 Deactivation from Platform. In addition, you agree that, if you are arrested or charged with any criminal offense which, if convicted, would bar you under applicable law, ordinance or regulation from being a TNC Driver, you agree to report the arrest or being charged to Wingz within 48 hours, and you further agree that you may be deactivated from access to the Wingz platform from the time of your arrest or being criminally charged until such time as youreport that the charges have been adjudicated or dismissed without conviction of a disqualifying offense. If thecharges result in a disqualifying conviction, you legally will no longer be authorized to provide services to Wingz’s Passenger Clients, and you agree that Wingz may terminate these Terms and Conditions upon written notice to you.
You also agree that Wingz may deactivate your access to the Wingz platform while it investigates complaints received from Passenger Clients regarding you or the services you provide and that Wingz may deactivate your access or terminate these Terms and Conditions in the event it determines, in its sole discretion, following its investigation that you materially breached the terms of these Terms and Conditions (such as by driving unsafely or recklessly or engaging in conduct that violates the Community Guidelines) or violated any applicable law, ordinance, or regulation, including but not limited to the common law and laws, ordinances, or regulations governing the conduct of TNCDrivers. By way of example, engaging in racial slurs or other forms of harassment, striking a Passenger Client or committing assault or battery, reckless driving or other violation of traffic laws, and failure to permit an authorizedservice animal to ride in your vehicle or other form of discrimination on the basis of disability are examples of conduct that can result in deactivation or termination of these Terms and Conditions.
Wingz may also deactivate your access to the Wingz platform or terminate these Terms and Conditions if, two timeswithin a calendar year, you fail to either provide at least 20 minutes advance notice to Wingz of inability to arrive at a pick-up location by the agreed-upon time or if you fail to arrive by the scheduled pick-up time (i.e. a “No-Show”) of an accepted ride.
11.3 Survival. Sections 4 (“Independent Contractor Relationship”), 5 (“Confidentiality”), 8 (“No Conflicts”), 9(“Representations and Warranties”), 10 (“Limitation of Liability”), and 12 (“General Provisions”) will survive any termination or expiration of these Terms and Conditions. Termination or expiration of these Terms and Conditions willnot affect either party’s liability for any breach of these Terms and Conditions such party may have committed before such expiration or termination.
12. GENERAL PROVISIONS
12.1 Law. These Terms and Conditions or any claim, cause, of action or dispute (“Claim”) arising out of or related tothese Terms and Conditions shall be governed, construed, and interpreted in accordance with the laws of the state of Georgia, notwithstanding any conflicts of law principles.
12.2 Arbitration. If you and Wingz are unable to resolve a dispute within 60 days of your original claim, you and Wingz agree to the following process:
In accordance with the Federal Arbitration Act, except as provided for below, you and Wingz agree to the final and binding resolution by arbitration of any claim (including, but not limited to, a claim for compensation, breach of contract, interpretation or enforceability of these Terms and Conditions, and any other claim for violation of any federal, state or local law) that you may have against Wingz or any of its related entities, their predecessors or successors, or its or their partners, owners, officers, directors, shareholders, administrators, employees, insurers, attorneys, or agents, in their capacity as such or otherwise; and any such claim that Wingz may have against you. Any arbitration pursuant to these Terms and Conditions shall be conducted before a single arbitrator affiliated with the American Arbitration Association (“AAA”). The place of the arbitration shall be held in the State and a County in which you provide services to Passenger Clients, at a location to be determined by the arbitrator in the arbitrator’s sole discretion, or as otherwise agreed to by the parties. If the claims are in any way predicated on allegations of an employment relationship, they shall be resolved under the Employment Dispute Resolution Rules then in effect for AAA, except as provided herein. Any other claims will be resolved under the AAA rules designated by the arbitrator; any dispute as to the applicable rules will be resolved by the arbitrator. Copies of the rules may be obtained from the AAA’s website: www.adr.org. The fees of the Arbitrator shall be assessed as called for under the relevant rules and applicable law. If you are unable to access or print the AAA rules, you may obtain a print out of the rules byrequesting one from Wingz via email at email@example.com.
The party wishing to initiate arbitration must submit a written demand for arbitration. If you initiate a Claim, you will submit the demand by certified mail to Wingz’s Agent of Service of Process for the state in which you provide Services. If Wingz initiates a claim, Wingz will serve a written demand for arbitration upon you by email to the email address on file with Wingz, and may send a copy by certified mail to your last known address (or to another addressspecified by you in your notice of dispute of your informal claim). You agree to service of process in that manner. Any demand for arbitration by either party shall identify the parties to the dispute, describe the legal and factual basis of the dispute, and specifically state the remedy being sought. Any demand for arbitration must be served no later than the expiration of the applicable statute of limitations for such a claim.
Except as otherwise provided in these Terms and Conditions, the parties’ agreement to arbitrate claims is entered into pursuant to and is enforceable pursuant to the Federal Arbitration Act, 9 U.S.C. § 1, et seq.
You and Wingz agree and acknowledge that any claims brought by you or Wingz shall only be in an individual capacity and that neither you nor Wingz can bring claims as a class member in any purported class, collective, or representative proceeding, including actions brought pursuant to Federal Rule of Civil Procedure 23, 29 U.S.C. § 216, or analogous state class action procedures. Nothing in these Terms and Conditions should be construed to require the arbitration of a claim (or the arbitration of a claim in a particular capacity) that cannot be compelled to arbitration (or cannot be subject to a class or collective action waiver within the arbitration setting) pursuant to applicable federal law. These Terms and Conditions also do not preclude you from filing an administrative charge or complaint with, or communicating in any way with, any federal, state, or local agency or official. To the extent that the Parties’ dispute involves both timely filed claims subject to arbitration under these Terms and Conditions and claims that are excluded from arbitration as set forth herein, the Parties agree to bifurcate and stay for the duration of the arbitrationproceedings any such excluded claims.
Each party to the arbitration shall bear its own respective attorneys’ fees and all other costs, unless otherwise provided by law or under the terms of the relevant AAA rules and awarded by the arbitrator.
13. Severability. If any provision of these Terms and Conditions is, for any reason, held to be invalid or unenforceable, the other provisions of these Terms and Conditions will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
14. No Assignment. These Terms and Conditions and your rights and obligations under these Terms and Conditions may not be assigned, delegated, or otherwise transferred, in whole or in part, by operation of law or otherwise, by you without Wingz’s express prior written consent. Any attempted assignment, delegation, or transfer in violation of the foregoing will be null and void. Wingz may assign these Terms and Conditions or any of its rights under these Terms and Conditions to any third party with or without your consent.
15.1 Collection of Information.
15.1.1 Information You Provide to Us. We collect information you provide directly to us, such as when you create, modify, or log in to your account, request support from us, consent to a background check, submit your driver’s license, submit information about your vehicle or insurance, or otherwise communicate with us. This information may include: name, email, phone number, postal address, profile picture, payment information, vehicle registration information, insurance information, driver’s license information, and other information you may choose to provide.
15.1.2 Information We Collect Through Your Use of Our Services. When you use our Services, Wingz collects information about you in the following general categories:
184.108.40.206 Location Information. As a condition of providing Passenger Clients with transportation services via theWingz platform, your precise location data must be provided to Wingz via the app that that you use. Once the Wingz app has permission to access location services through the permission system used by your mobile operating system (“platform”), we will collect the precise location of your device when the app is running in the foreground or background. Location information may be stored electronically for a period of time solely in the discretion of Wingz. If you initially permit the collection of location information, you may later disable it by changing the location settings on your mobile device, however, you will not be able to provide services on the Wingz platform if you disable our collection of precise location data. Additionally, disabling our collection of precise location from your device will not limit our ability to derive approximate location from your IP address. BY SIGNING THIS AGREEMENT, YOU HEREBY EXPRESSLY CONSENT TO WINGZ’S USE OF LOCATION-BASED SERVICES AND EXPRESSLY WAIVE AND RELEASE WINGZ FROM ANY AND ALL LIABILITY, CLAIMS, CAUSES OFACTION OR DAMAGES ARISING FROM YOUR USE OF THE WINGZ PLATFORM, OR IN ANY WAY RELATING TO THE USE OF THE PRECISE LOCATION AND OTHER LOCATION-BASED SERVICE.
220.127.116.11 Contact Information. If you permit the Wingz app to access the address book on your device via the permission system used by your platform, we may access and store names and contact information from your addressbook to facilitate social interactions through our Services and for other purposes described in this Statement or at the time of consent or collection.
18.104.22.168 Transaction Information. We collect transaction details related to the transportation services you providethrough our platform, including the type of service provided, date and time the service was provided, amount charged, distance traveled, and other related transaction details. Additionally, if someone uses your promo code, we may associate your name with that person.
22.214.171.124 Device Information. We may collect information about your mobile device, including, for example, the hardware model, operating system and version, software and file names and versions, preferred language, unique device identifier, advertising identifiers, serial number, device motion information, and mobile network information.
126.96.36.199 Call and SMS Data. Our Services facilitate communications between Passenger Clients and Driver Clients. In connection with facilitating this service, we may receive call data, including the date and time of the call or SMS message, the parties’ phone numbers, and the content of the SMS message.
188.8.131.52 Log Information. When you interact with the Services, we collect server logs, which may include information like device IP address, access dates and times, app features or pages viewed, app crashes and other system activity,type of browser, and the third-party site or service you were using before interacting with our Services.
184.108.40.206 Important Information About Platform Permissions. Most mobile platforms (iOS, Android, etc.) have defined certain types of device data that apps cannot access without your consent. And these platforms have different permission systems for obtaining your consent. The iOS platform will alert you the first time the Wingz app wantspermission to access certain types of data and will let you consent (or not consent) to that request. Android devices willnotify you of the permissions that the Wingz app seeks before you first use the app, and your use of the app constitutes your consent.
15.1.3 Information We Collect From Other Sources. We may also receive information from other sources andcombine that with information we collect through our Services. For example:
- If you choose to link, create, or log in to your Wingz account with a payment provider (e.g., Google Wallet) or social media service (e.g., Facebook), or if you engage with a separate app or website that uses our API(or whose API we use), we may receive information about you or your connections from that site or app.
- If you use the Services through an account associated with a partner transportation company, we may receive information about you from that partner company.
- When you provide services to Passenger Clients, our Passenger Clients may provide us with a driver rating or similar rating of the service you provide for them.
- If you also interact with our Services in another capacity, for instance to request services as a PassengerClient, or as a user of other apps we may provide, we may combine or associate that information with information we have collected from you in your capacity as a Driver Client.
15.2 Use Of Information. Wingz may use the information we collect from or about you in the following ways:
- To provide, maintain, and improve our Services, including, for example, to facilitate payments, send receipts, provide products and services (and send related information), develop new features, provide customersupport to Passenger Clients and Driver Clients, develop safety features, authenticate users, and send product updates and administrative messages;
- To perform internal operations, including, for example, to prevent fraud and abuse of our Services; totroubleshoot software bugs and operational problems; to conduct data analysis, testing, and research; and to monitor and analyze usage and activity trends;
- To send or facilitate communications (i) between you and a Passenger Client such as estimated times ofarrival (ETAs), or (ii) between you and a contact of yours at your direction in connection with your use of certain features, such as referrals.
- To send you communications we think will be of interest to you, including information about products,services, promotions, news, and events of Wingz and other companies, where permissible and according to local applicable laws; and to process contest, sweepstake, or other promotion entries and fulfill any related awards;
- To personalize and improve the Services, including to provide or recommend features, content, social connections, referrals, and advertisements.
We may transfer the information described in this Statement to, and process and store it in, the United States and other countries, some of which may have less protective data protection laws than the region in which you reside. Where this is the case, we will take appropriate measures to protect your personal information in accordance with this Statement.
15.2.1 Sharing Of Information. We use practices that are consistent with standards in our industry to protect your privacy. We cannot, however, promise that your personally identifiable information or private communications willremain private. For example, third parties may unlawfully intercept or access transmissions or private communications on our website, platform, servers or other devices. We do not sell or rent any personally identifiable information about you to any third party. In addition to the uses of personal information set forth in paragraph 15 of the Software-as-a- Service (“SaaS”) Agreement you previously executed, Wingz may use or disclose your personally identifiable information, even if no notice is provided at the time of collection, in the following ways:
220.127.116.11 Business Purposes
- With Passenger Clients in connection with their request for transportation. For instance, we may share your name, personal photo, vehicle photo, vehicle license, vehicle make and model, precise or approximate location, average rating provided by Passenger Clients, and certain contact information (depending upon your location and applicable laws). After you have provided the requested services, we will send thePassenger Client a receipt via e-mail or other means which may include the breakdown of amounts charged, your name, contact information, photo, a map of the route you took, and other transaction details;
- With other people, as directed by you, in connection with a particular service, offering or promotion; or with third parties to provide you a service you requested through a partnership or promotional offering made by a third party or us;
- With the general public if you submit content in a public forum, such as blog comments, social media posts, or other features of our Services that are viewable by the general public;
- With third parties with whom you choose to let us share information, for example other apps or websites thatintegrate with our API or Services, or those with an API or Service with which we integrate;
- With your partner transportation company and any necessary third parties engaged by us or the partner company, if you use the Services through an account connected to a partner transportation company.
- With Wingz subsidiaries and affiliated entities that provide services or conduct data processing on our behalf, or for data centralization and / or logistics purposes;
- With vendors, consultants, marketing partners, and other service providers who need access to such information to carry out work on our behalf;
- With law enforcement officials, government authorities, or other third parties if we believe your actions are inconsistent with our user agreements or policies, or to protect the rights, property, or safety of Wingz or others;
- In connection with, or during negotiations of, any merger, sale of company assets, consolidation orrestructuring, financing, or acquisition of all or a portion of our business by or into another company;
- If we otherwise notify you and you consent to the sharing; and
- In an aggregated and/or anonymized form which cannot reasonably be used to identify you.
18.104.22.168 Law Enforcement Purposes. Subject to all applicable laws, Wingz may provide to a third party anyinformation (including personal data and any Wingz Data) about Driver Clients provided hereunder if: (a) there is acomplaint, dispute or conflict, including an accident, relating to a Driver Client; (b) it is necessary to enforce the terms of the Software-as-a-Service (“Saas”) Client Agreement; (c) it is required, in our sole discretion, by applicable law, regulation, ordinance, license, or operating agreement; (d) it is necessary, in our sole discretion, to protect the safety, rights, property, or security of Wingz or any third party; to detect, prevent or otherwise address fraud, security or technical issues; and/or to prevent or stop activity which Wingz, in its sole discretion, considers to be, or to pose a risk of being, illegal, unethical, or legally actionable.
Further, we reserve the right at all times to disclose any information about you as necessary to satisfy any applicable law, regulation, legal process, or governmental request. We reserve the right to cooperate fully with any lawenforcement authorities or court orders requesting or directing us to disclose the identity or location of anyone using our applications, website or platform or otherwise making available any materials on the Site. BY ACCEPTING THESE TERMS AND CONDITIONS, YOU WAIVE ALL RIGHTS AND AGREE TO HOLD US HARMLESS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY US DURING OR AS A RESULT OF ANY INVESTIGATIONS AND/OR FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF ANY INVESTIGATION BY EITHER US OR LAW ENFORCEMENT AUTHORITIES.
15.2.2 Social Sharing Features. The Services may integrate with social sharing features and other related tools which let you share actions you take on our Services with other software-based services, or with apps, sites, or media, and viceversa. Your use of such features enables the sharing of information with your friends or the public, depending on the settings you establish with the social sharing service. The privacy policies of those social sharing services will apply to any information you share and you should their privacy policies for more information about how they handle the data you provide to or share through them.
15.2.4 Contact Information. We may also seek permission for our Service to collect and sync contact information from your device per the permission system used by your mobile operating system. If you initially permit the collection of this information, iOS users can later disable it by changing the contacts settings on your mobile device. The Android operating system does not provide such a setting.
15.2.5 Promotional Communications. You may opt out of receiving promotional messages from us by following the instructions in those messages. If you opt out, we may still send you non- promotional communications, such as those about your account, about Services you have requested, or our ongoing business relations.
15.3 Changes to this Section. We may change this Section from time to time. If we make significant changes in the way we treat your personal information, or to the Statement, we will provide you notice through the platform or bysome other means, such as email. You will be asked to agree to any material changes by signing the notice or anaddendum to your Software-as-a- Service (“SaaS”) Client agreement.
16. Additional Contract Terms
16.1 Notices. Wingz may give any notice required by these Terms and Conditions by means of a general notice on the Application, electronic mail to your email address on record with Wingz, text message to your cell phone on record with Wingz, or by written communication sent by first class mail or pre-paid post to your address on record with Wingz. Such notice shall be deemed to have been given upon the expiration of forty-eight (48) hours after mailing or posting (if sent by first class mail or pre-paid post) or twelve (12) hours after sending (if sent by email or text message). You may give notice to Wingz, by providing written notice sent via certified mail, return receipt requested or by a nationally recognized overnight delivery service to its designated agent for service ofprocess.
16.2 Waiver. All waivers must be in writing and signed by the party to be charged. Any waiver or failure to enforceany provision of these Terms and Conditions on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
16.3 Execution and Delivery; Binding Effect. The parties will evidence execution and delivery of these Terms and Conditions with the intention of becoming legally bound, by accepting the Terms of Service on the Site.
16.4 Entire Agreement; Amendments. These Terms and Conditions constitute the final, complete, and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior or contemporaneous communications and understandings between the parties.
16.5 Modifications to Application. Wingz reserves the right at any time to modify or discontinue, temporarily orpermanently, the Application (or any part thereof) with or without notice. You agree that Wingz shall not be liable to you or to any third party for any modification, suspension, or discontinuance of the Application.
17. Contacting Wingz. If you wish to report a violation of the Software-as-a-Service Client Agreement, have any questions or need assistance, please contact Customer Support at firstname.lastname@example.org.
18. Effective Date. These Terms and Conditions shall become effective upon your initial access of the Wingz Application, subject to your successful completion of any and all required background checks.
19. Force Majeure. Wingz cannot be held liable for any breach of its obligations under these Terms and Conditions due to developments beyond its control and/or resulting from a force majeure. Cases of force majeure include, in addition to cases accepted by the courts, electrical and technical problems from external parties preventing communication.