IMPORTANT – READ CAREFULLY BEFORE PROCEEDING. YOU, THE “USER” WHETHER A DRIVER OR A SENDER, AGREE AS FOLLOWS. YOUR USE OF ANY DOWNLOADABLE SOFTWARE PRODUCTS, FEATURES OR SERVICES AVAILABLE ON OR THROUGH THE PONYEX APP OR WEBSITE IS CONDITIONED UPON YOUR ACCEPTANCE OF AND COMPLIANCE WITH THE FOLLOWING AGREEMENT. YOU ACKNOWLEDGE AND AGREE THAT BY CLICKING ON THE AGREE BUTTON AS MAY BE DESIGNATED BY UGO NOW, INC., DOING BUSINESS AS PONYEX (“PONYEX”) TO SHOW THESE TERMS AND/OR TO INSTALL THE PONYEX APP OR ANY RELATED SOFTWARE (COLLECTIVELY “PONYEX APP”), YOU ARE ENTERING INTO A LEGALLY BINDING CONTRACT. YOU WILL NOT BE PERMITTED TO USE THE PONYEX APP AND ANY ASSOCIATED SERVICES UNLESS AND UNTIL YOU AGREE TO THESE AGREEMENTS AND ANY OTHER RULES OR POLICIES THAT PONYEX MAY CREATE AND MAKE AVAILABLE ON THIS APP OR WEBSITE FROM TIME TO TIME.
You represent and warrant that you (i) have read and understand or have gained an understanding of these Agreements and agree to be bound by them; (ii) are if legal age in which you reside to enter into a binding contract; (iii) have all authority necessary to enter into these Agreements personally, or if on behalf of an organization, it is within the scope of your responsibilities and authority to enter into these Agreements for the organization; (iv) will not open more than one account/registration with PonyEx; and (v) that login/registration data, contact information and other information provided is current, complete, and accurate, that PonyEx can rely upon it to communicate with you and that if any such data or information changes you will update that data and/or information with PonyEx.
These Agreements will commence on the date that you complete the installation of the PonyEx App (the "Effective Date").
1. TITLE.The PonyEx TM App is a copyrighted work and its logos, brands and identifiers are trademarks owned exclusively by PonyEx. PonyEx shall retain all right, title and interest in the PonyEx App and in all intellectual property rights therein. Subject to PonyEx’s ownership, no license or other rights of any kind are granted or conveyed except for the limited use license expressly provided herein. You agree that you will not remove, conceal or otherwise change any copyright, trademark, patent or other proprietary notice or source identifier contained in or associated with the PonyEx App. Under this End-User License Agreement you only receive a copy of the PonyEx App. You shall not duplicate, distribute, offer, loan, transfer, encumber, sell or otherwise dispose of the copy of the PonyEx App you receive to any third party without having received prior written authorization from PonyEx. If you do so without PonyEx’s permission, the transfer will be deemed void because the limited use license is not transferable.
2. LIMITED LICENSE. PonyEx hereby grants to you a limited, nonexclusive, non-transferable, non-sublicensable license to use the PonyEx App on a mobile device or personal computer that you may own or control to use, display and execute the PonyEx App during the term of this End-User License Agreement for your personal convenience. This limited license creates no legal, delivery business relationship, commitment or obligation between a transportation provider (“Driver”), PonyEx and/or any service or product owner for whom Driver may provide transportation service(s) (“Sender”).
3. RESTRICTION ON USE. You agree that you will not and that you will not permit or allow any other person, directly or indirectly to (a) copy, reproduce, modify, redistribute, sublicense, transfer, rent, lease, sell, resell, lend, assign, publish, transmit, create derivative work(s), disclose or otherwise disseminate, exploit or make available any portion or all of the PonyEx App to any third party in any form; (b) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the PonyEx App; or (c) post, cast or otherwise make the PonyEx App available over a computer network where it could be used by multiple devices at the same time.
4. UPDATES OF THE PONYEX APP. During the term of this End-User License Agreement, PonyEx may, in its sole discretion, develop updates and may notify you that it has released an updated version of the PonyEx App (the"Updated App"). You may download the Updated App and use the Updated App instead of the prior version. Any Updated App will also be considered "App" for purposes of this End-User License Agreement. PonyEx reserves the right at any time and from time to time to supplement, add, change, modify, alter or discontinue temporarily or permanently any and all functionality or features of the PonyEx App with or without notice. You agree that PonyEx shall not be liable to you for any modification, suspension or discontinuance of the PonyEx App or any features or functions of the PonyEx App. If PonyEx is required due to any third-party rights to modify the PonyEx App you agree to discontinue use of any prior version of the PonyEx App and commence using a modified version of the PonyEx App.
5. TERMINATION. This End-User License Agreement and the limited license granted hereunder shall terminate immediately if you breach any material term or condition hereof. In theevent of a termination of this End-User License Agreement, you agree to discontinue all use of the PonyEx App, promptly destroy or have destroyed all copies of the PonyEx App, and upon request from PonyEx certify in writing to PonyEx that such destruction has taken place.
6. DISCLAIMER OF WARRANTIES. You acknowledge that the PonyEx App provided may contain bugs and errors. The PonyEx App is provided to you "as is" and any use of the PonyEx App is at your own risk. To the extent legally permitted under applicable law, PonyEx disclaims all warranties, whether express, implied or statutory, including without limitation, any implied warranties of title, non-infringement of third-party rights, merchantability or fitness for a particular purpose. Some jurisdictions do not allow the exclusion of implied warranties, so the above limitations may not apply to you.
7. LIMITATION OF LIABILITY. You agree that to the extent permitted under the applicable law, PonyEx shall not be responsible for any loss or damage to you or others caused by failure ofthe PonyEx App to function. In no event will PonyEx be liable for any special, consequential, exemplary, incidental, or indirect damages (including, without limitation, those resulting from lost profits, cost of substitute goods or services, lost data or interruption of any mapping or communication functionality) in connection with the use of the PonyEx App or in connection with any other claim arising from this End-User License Agreement, even if PonyEx has been advised of the possibility of such damages. The aggregate liability of PonyEx arising from or relating to this End-User License Agreement and the downloading and use of the PonyEx App, regardless of the form of action or claim (e.g., contract, warranty, tort, strict liability, negligence,fraud or other legal theory) is limited to the amounts paid by you to PonyEx during the six monthperiod preceding the event giving rise to liability. Applicable law may not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you.
8.1 Feedback. In the event that you provide PonyEx with comments, feedback or suggestions regarding the use, operation, improvement or functionality of the PonyEx App ("Feedback"), including but not limited to information about potential improvement, operating results, known or suspected bugs, errors or compatibility problems, or desired features, you hereby assign to PonyEx all rights in the Feedback and agree that PonyEx shall have the right to use the Feedback and related information in any manner it deems appropriate in its sole discretion.
8.2 Governing Law, Arbitration and Venue. This End-User License Agreement shall be governed by the laws of the State of Utah without giving effect to any conflict of laws principles that may provide the application of the law of another jurisdiction.
Disputes as to this End-User License Agreement, except those causing irreparable harm and requiring injunctive relief discussed below, shall be resolved using arbitration. The application of the United Nations Convention on the International Sale of Goods is hereby expressly excluded. Such arbitration shall be initiated through an established alternative dispute resolution provider ("ADR Provider") that offers arbitration as set forth in this section and under the rules of such ADR Provider, except to the extent such rules are in conflict with this End-User License Agreement. The party demanding arbitration will propose an ADR Provider and the other party shall not unreasonably withhold consent to use such ADR Provider. The ADR Provider and the parties must comply with the following rules: a) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; b) all arbitration proceedings shall be held in English; c) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and d) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Each party shall bear its own costs (including attorney fees) and disbursements arising out of the arbitration, and shall pay an equal share of thefees and costs of the ADR Provider.
You acknowledge that breach of this End-User License Agreement by you many cause irreparable injury to PonyEx for which monetary damages would not be an adequate remedy and,therefore, PonyEx will be entitled to seek injunctive relief (including specific performance) in a court of competent jurisdiction. To this end, you and PonyEx agree to submit to the jurisdiction of, and agree that venue is proper in, the state courts located in Utah and the federal courts located in the district in Utah where PonyEx has its principle place of business.
8.3 Severability; Language. If any provision of this End-User License Agreement is found to beinvalid or unenforceable, such provision will be deleted, changed and interpreted to accomplish the objectives of this End-User License Agreement to the greatest extent possible under applicable law and the remaining provisions will remain in full force and effect. The parties of this End-User License Agreement have expressly required that the present Agreement be drawn up in the English language.
8.4 Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of the same provision or any other provision on any other occasion.
8.5 Entire Agreement. This End-User License Agreement and any terms whether express or implied included in the PonyEx App itself as to data gathering, advertising or in-App purchases constitutes the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties. No modification of or amendment to this End-User License Agreement, nor any waiver of any rightsunder this End-User License Agreement, will be effective unless in writing and signed by the party to be charged (which, in the case of the PonyEx, shall require the signature of a duly authorized officer of the PonyEx).
8.6 Assignment. This Agreement is personal to you. You may not assign any right you may have under this Agreement to any person or entity except as may occur by operation of law. PonyEx may assign any of its ownership and rights to another without requiring any consent from you.
1. WHAT THE PONYEX APP IS AND WHAT THE PONYEX APP IS NOT
The PonyEx App is merely a communication platform. It provides any attendant conveniences of communication between Driver and Sender via-a-vis the pick-up, transportation and/or delivery of personal property/goods (“Delivery Services.). The performance of Delivery Services by a Driver such as the time period in which the Delivery Services are performed by a Driver, as well as the item(s) of personal property/goods being picked-up, carried and/or delivered by a Driver as agreed by the Sender are collectively referred to as a “Delivery”. Neither PonyEx nor the PonyEx App provides Delivery Services or causes or participates in any Delivery. PonyEx provides communication services between Driver and Sender.
The PonyEx App also facilitates payment and collection for Delivery Services. Because neither PonyEx nor the PonyEx App provides Delivery services, PonyEx does not earn payment for Delivery Services. PonyEx does, however, earn a fee for facilitating payment for Delivery Services (“Collection Fee”). The amount of any fee earned by PonyEx is part of the fee Driver charges Sender for a Delivery (“Delivery Fee”). PonyEx, via the PonyEx App, facilitates the purchase and collection of the Delivery Fee, receives the Delivery Fee, retains PonyEx’s Collection Fee and forwards the balance of the Delivery Fee minus the Collection Fee to Driver. Details as to Collection Fees and Delivery Fees are discussed below.
2. PONYEX IS NOT RESPONSIBLE FOR THE ACTIONS OF DRIVERS AND SENDERS COMMUNICATING VIA THE PONYEX APP AND/OR PROVIDING DELIVERY SERVICES
PonyEx is not an employer of Driver or Sender. You have no authority to bind PonyEx or cause PonyEx to have any responsibility for Delivery Services or for other delivery related legal obligations. Neither Driver nor Sender may undertake to hold yourself out as an employee, agent or authorized representative of PonyEx. Where, by implication of mandatory law or otherwise, you may be deemed an agent or representative of PonyEx, you agree to indemnify, defend (at PonyEx’s option) and hold PonyEx harmless from and against any claims by any person, Driver or Sender related to the Delivery Services.
Driver and Sender hereby acknowledge and agree that Driver is a self-employed/independent contractor who chooses to perform Delivery Services for Senders who post Delivery requests on the PonyEx App. At no time does PonyEx control whether or when a Sender posts, removes or retracts a particular Delivery request, or whether or when a Driver chooses to pursue and fulfill a Delivery request by offering Delivery Services for a particular Delivery request.
Communication between Driver and Sender through the PonyEx App regarding the performance of particular Delivery Services does not control whether a Driver chooses to simultaneously provide Delivery Services or any other types of services under another platform or App for Sender, another person or persons.
Driver and Sender acknowledge and agree that by making or accepting a Delivery request, Driver and/or Sender may, outside the control of PonyEx, Driver and/or sender, be exposed to unknown third-parties and contents in deliveries that may be or are potentially dangerous, offensive, harmful, unsafe or otherwise objectionable and that PonyEx shall have no responsibility, obligation or liability therefor.
If any State or federal law or regulation require you to be treated as an employee of PonyEx (“Driver Employee Law”), PonyEx reserves the right, in its sole discretion, to terminate this Agreement and prohibit use of the PonyEx App in whatever geographic location is governed by Driver Employee Law. If this Agreement is terminated due to a Driver Employee Law, you acknowledge and agree that PonyEx shall not be liable for any consequential or compensatory damages.
3. PONYEX DOES NOT PROVIDE TRANSPORTATION OR LOGISTICS SERVICES OR FUNCTION AS A TRANSPORTATION CARRIER OR A MOVING OR HAULING OF FREIGHT CARRIER
Because PonyEx does not provide Delivery Services, PonyEx does not provide any regulated transportation or logistics services. As a result, PonyEx has no control over and is not responsible for the performance, actions or inactions of any Driver or Sender, whether associatedwith the use of the PonyEx App or the receiving or providing the Delivery Services between Driver and Sender in public, private, or offline interactions, or otherwise.
4. SAFEGUARDING PONYEX ACCESS AND SECURING THIRD PARTY INFORMATION
You will secure and keep confidential your PonyEx App account password or any identification credentials we provide you which allows access to the PonyEx App and related services. You will not permit another person or entity to use your PonyEx App account password or any identification credentials we provide you which allows access to the PonyEx App and related services.
You will secure and keep confidential any personal identifying information, confidential information, or information of any person, such as information governed by HIPPA, which you may receive through communications using the PonyEx App or which you may observe during the court of Delivery Services.
5. PROPER/IMPROPER USES OF PONYEX
You will not use the PonyEx App or Delivery Services for any unlawful purposes. You will not use the PonyEx App or Delivery Services for communicating, sending, transporting or storing any unlawful material or for deceptive or fraudulent purposes.
The PonyEx App and Delivery Services will only be used in accordance with all applicable local,state, federal and international commercial and transportations laws and regulations as well as respecting copyrights, trade secrets, trademarks, patents or other rights of any third party, including privacy or publicity rights. Any material violation of these restrictions provides grounds for PonyEx to terminate your use of the PonyEx App.
Driver and Sender agree that you each individually have an understanding of all transportation laws applicable to any Delivery request and/or Delivery Service in which you participate. You agree and acknowledge that you are not relying upon any communication, instruction, opinion orrepresentation from PonyEx as to how to comply with transportation laws and regulations governing Delivery Services generally or any particular Delivery.
In any event, you warrant and agree that as to Delivery Services and Delivery there shall be:
You acknowledge and agree that PonyEx is not responsible or liable for the shipment, preservation or disposal of contents of or any loss, fine or damage associated with any ProhibitedDelivery known or unknown to PonyEx, Driver or Sender.
Certain controlled substances, by way of example only but not limited to, such as cigarettes, other tobacco products, alcohol and unlawful drugs, may, dependent on governing state or federal law, only be handled, sold and distributed in accordance with such laws. Driver and Sender acknowledge to PonyEx and to each other that Driver and Sender have independently identified, understand and will comply with all state and federal laws governing the handling, sale and distribution of controlled substances.
As a result, to prevent Prohibited Deliveries and to properly deliver other controlled substances, Sender and Driver agree to help protect each other through having Sender disclose generally the nature of the contents associated with its Delivery request and allowing the Driver to reserve its right to refuse Delivery Services based on a known or suspected Prohibited Delivery or delivery of other controlled substances.
You will not contact another User after the delivery has been completed.
You will not use any threatening, harassing, or otherwise inappropriate behavior to others using or associated with use of the PonyEx App.
You will not use the PonyEx App to discriminate against another user in violation of any governing law or regulation.
Driver and Sender acknowledge and consent that PonyEx may from time to time offer promotions, promo codes and/or discounts for first time users or as a reward for referrals. These rewards will come in the form of credits that can be used when communicating about and/or paying for Delivery Services. The PonyEx App or any associated website may be adapted to obtain and redeem promotional credits, codes and/or discounts.
PonyEx contemplates that a valid promotion credit, code or gift card must be entered before the service is requested in order for the credits to be applied to Delivery Services. Promotional credits, codes and/or discounts cannot be retroactively added to Delivery Services that have already been scheduled. Any promotional credits, codes and/or discounts earned using illegal or fraudulent methods will be null and void. PonyEx reserves the right to cancel or suspend promotional credits, codes and/or discounts prospectively.
7.1 Driver Qualification and Provision of Delivery Services
You, Driver, acknowledge and agree that at all times material to Delivery Services: (a) you shall hold and maintain (i) a valid driver’s license with the appropriate level of certification to operate your Vehicle, and (ii) all licenses, permits, approvals and authority applicable to you that are necessary to provide Delivery Services to Sender between pick-up and delivery; (b) you are at least 18 years of age or at least the age required by law for the delivery of content identified by Sender; (c) you possess the appropriate and current level of training, expertise, experience and physical health to provide the Delivery Services required for the Delivery request in a professional and safe manner with due skill, care and diligence; (d) you will maintain high standards of professionalism, service and courtesy; (e) you will not provide Delivery Services when under the influence of alcohol, illegal drugs or any substance that impairs your ability to drive safely and interact with others; and (f) you are medically fit to drive and to lift at least 125 pounds without causing danger or health risk to yourself or another person. You represent that independent of PonyEx you have consulted all professionals necessary to ensure compliance with (a)-(f) above.
You acknowledge and agree that you may be subject to certain background and driving record checks from time to time in order to qualify to provide, and remain eligible to provide the Delivery Services. You consent and allow PonyEx to request background and/or driving record records from relevant law enforcement or driver license agencies or departments. You acknowledge and agree that PonyEx reserves the right, at any time in PonyEx’s sole discretion, to deactivate or otherwise restrict you from accessing or using the PonyEx App if you fail to meet the requirements set forth in these Agreements.
Driver consent that PonyEx may independently verify your qualification documentation from time to time in any way PonyEx deems appropriate in its reasonable discretion.
7.2 Vehicle Requirements
You acknowledge and agree that any vehicle you use to provide Delivery Services (“Vehicle”) shall at all times be (a) properly registered and licensed to operate as a transportation vehicle in the state(s) corresponding the Delivery request; (b) suitable for performing the Delivery Services; (c) maintained in good operating condition, consistent with industry safety and maintenance standards for a Vehicle of its kind and any additional standards or requirements in the applicable state(s); and (d) in a clean and sanitary condition and meets reasonable appearance standards deemed acceptable to maintain the reputation of PonyEx and Sender.
Driver consent that PonyEx may independently verify your Vehicle documentation from time to time in any way PonyEx deems appropriate in its reasonable discretion.
7.3 Mobile Communications
You agree that (a) you will possess an operable mobile device at all stages of Delivery Services; (b) use of the PonyEx App on your mobile device requires an active data plan with a wireless carrier associated with your mobile device, which data plan will be provided by you at your own expense; and (c) use of the PonyEx App on our mobile device as an interface with the Delivery Services may consume large amounts of data through the data plan.
7.4 Insurance and Taxes
After consulting with professionals, you have obtained and will maintain in force during all stages of Delivery Services, all automobile liability, workers’ compensation or health insurance coverage for Driver and your Vehicle.
You agree that PonyEx is not responsible for paying for automobile liability, workers’ compensation or health insurance coverage for Driver and your Vehicle or for any liability that may arise from a Driver’s performance of a Delivery Services, including any bodily injury or damage to property caused by or to the Driver while providing Delivery Services.
Driver acknowledges and accepts responsibility for all financial consequences to you related to personal income tax and personal property tax liabilities incurred while providing Delivery Services.
PonyEx has no responsibility or liability for any consequences resulting from Driver or Sender not having the proper authority, permits, licenses or insurance request or fulfill a Deliver request.
7.5 Driver’s Capability and Performance
Because PonyEx cannot know whether a particular Driver is physically capable of successfully providing Delivery Services, it is entirely the responsibility of the Driver to know and abide by their own physical limits.
For each and every Delivery Service you agree to: (a) as needed, properly distribute and secure the contents of a Delivery request (“Cargo”); (b) inspect the Cargo and devices to secure the Cargo prior to beginning trip; (c) have clear visibility on all sides of the Vehicle; and (d) use extreme caution and care with Sender’s Cargo when place in or on the bed of truck-like Vehicle. Sender consents that Driver may note any existing damage to any item of Cargo and photographit prior to transport.
You agree to not accept a Delivery request for which you cannot safely load, securely transport and unload the intended Cargo with the Vehicle.
You are responsible to mitigate or remediate damage to or loss of Cargo directly with the Sender.You agree that PonyEx shall have no liability for damage to or loss of Cargo at or between pick-up and delivery.
7.6 Your Relationship with PonyEx
With the exception of any signage required by local law or permit/license requirements, PonyEx shall have no right to require you to: (a) display PonyEx’s name, logos or colors on your Vehicle; or (b) wear a uniform or any other clothing displaying PonyEx’s name, logos or colors.
PonyEx retains the right to deactivate or otherwise restrict you from accessing or using the PonyEx App to communicate regarding the Delivery Services or from utilizing PonyEx’s payment collection services in the event of a violation of this Agreement, your disparagement of PonyEx, your act or omission that causes harm to PonyEx’s brand, reputation or business as determined by PonyEx in its sole discretion.
7.7 Geo-Location Tracking Agreement
To allow Sender and/or PonyEx to confirm the status and progress of Delivery Services providedby Driver, Driver agrees and consents that dynamic, geo-location information as to Driver’s Vehicle will be continuously provided to Sender and PonyEx via Driver’s mobile device and mobile communication service during the performance of Delivery Services. Driver hereby consents that the location of Driver’s Vehicle used to provide Delivery Services may be electronically or visually monitored, tracked and shared for the benefit of Sender and PonyEx.
7.8 Suspension and/or Permanent Termination of Driver Account
7.9 Reimbursement of Out-of-Pocket of Expense Paid by Driver
Driver will only be reimbursed for out-of-pocket costs and expenses incurred in performing and directly related to a Delivery. Reimbursement requires Driver to present PonyEx with adequate documentary evidence of incurring the same (a receipt) within fifteen (15) days of incurring the expense. Such expenses include fees, permits, taxes and tolls directly related to a particular Delivery, but do not include Vehicle fuel, service, maintenance, insurance and the like related to generally operating the Vehicle.
7.10 Exchange of User and Destination Information
If you accept a posted Delivery request for Delivery Services, the PonyEx App will provide you with certain Sender Information including the Sender’s name, pick-up and Delivery destination locations and other pick-up contact information. Driver shall give Sender or Sender’s agent at least ten (10) minutes beyond the scheduled pick-up time to appear to coordinate pick-up of Cargo at the indicated location.
You will obtain the Delivery destination from the Sender through the PonyEx App.
You acknowledge and agree that once you have accepted a Sender’s request for Delivery Services, the PonyEx App may provide certain information about you to the Sender including at least your first name, contact information, photo, pick-up location, and your Vehicle’s make, model and license plate number to permit the Sender or Sender’s agent to confirm Driver authenticity.
Except for purposes associated with the particular, accepted Delivery request, you shall not contact any Sender or Receiver (the person or entity receiving delivery) or use any personal data or contact information of Sender or Receiver for any other reason including for a future delivery.As agreed below with respect to non-disclosure, non-competition and non-circumvention, you will make no arrangement for other or future Delivery Services to be provided by yourself or by another with any Sender or Receiver except through the PonyEx App or related website.
Independent of PonyEx, you acknowledge and agree that: (a) you shall be solely responsible for determining the most effective, efficient and safe manner to perform each instance of Delivery Services; and (b) you shall provide all necessary licensed and registered Vehicles, Vehicle accessories, equipment, tools and other materials, at your own expense, necessary to perform the requested Delivery Services.
7.11 Financial Terms
Delivery Calculation and Your Payment. You are entitled to charge a fare for each completed Delivery Service provided to a Sender based upon the Delivery request identified by the Sender and consistent with PonyEx’s size and weight designations for each Delivery, see sections 8.1 and 8.2 below (“Fare’’), calculated based on current standards for the transportation area and established by the PonyEx that may include minimum charge, base rate, per mile charge, and user discounts or promo codes (“Fare Calculation”). Notwithstanding the foregoing, there may be situations where the Fare is predetermined, e.g., fixed rates or minimum Fare. You acknowledge and agree that the Fare less a Service Fee is the payment you will receive in connection with the execution of Delivery Services. You acknowledge that PonyEx may distribute user discounts (promo codes) to encourage usage of the PonyEx App and that the Fare available to you will be less than the normal Fare when a promo code is utilized by a Sender.
If you are required or requested to wait longer than twenty-minutes due to Sender’s delay, you may charge Sender and Sender will pay an additional wait fee of $5 per fifteen minutes (“Wait Fee”).
You are entitled to charge User for any tolls, taxes or fees incurred during the execution of Delivery Services, if applicable.
You (a) appoint PonyEx as your limited payment collection agent solely for the purpose of accepting the a delivery fare, tips, applicable tolls and, depending on the region and/or if requested by you, applicable taxes and fees from the Sender on your behalf via the payment processing functionality facilitated by the PonyEx App; and (b) agree that payment made by Sender through PonyEx shall be considered the same as payment made directly by Sender to you.
Changes to Fare Calculation; Fare Adjustment. PonyEx reserves the right to change the amount charged for Delivery Service (“Fare”) at any time in PonyEx’s discretion based upon local market factors. Your acceptance of a Delivery request with the associated driver earnings will constitute your acceptance of the PonyEx’s Fare calculation. Additionally, PonyEx reserves the right to cancel the Fare for a particular instance of Delivery Services (e.g., User is charged for Delivery Services that were not provided, in the event of a Sender complaint, fraud, etc.). PonyEx’s decision to alter, reduce or cancel the Fare in any such manner shall be exercised in a reasonable manner.
Service Fee. In consideration of PonyEx helping drivers find senders and senders find drivers and of payment processing associated with Delivery Services for your use and benefit hereunder,you agree to pay PonyEx a service fee on a per Delivery Services transaction basis (“Service Fee”). The Service Fee will include, at a minimum, a finder’s fees for provisioning of Delivery Services (“Finder’s Fee”) and fees for processing Sender payments (”Payment Processing Fee”). Any tips you receive from a Sender or Receiver whether in cash or through the PonyEx’s payment processing will not be subject to the PonyEx Finder’s Fee. Tips submitted through the PonyEx's payment processing are subject to the Payment Processing Fee. In the event government laws for regulations applicable to your delivery area require taxes to be calculated on the Fare, PonyEx shall calculate the Service Fee based on the Fare net of such taxes. PonyEx reserves the right to change the Service Fee at any time in PonyEx’s discretion based upon local market factors. Your acceptance of a Delivery request with the associated driver earnings will constitute your acceptance of the Service Fee.
Service Fee Reduction Policy. PonyEx May reduce its Service Fee based upon you achieving certain factors through the PonyEx App which will be set by PonyEx. Factors that may be included in the Service Fee reduction bonus are: average star ratings, number of positive reviews,referrals, punctuality, completed deliveries and number of times you have been favorited. PonyEx reserves the right to change the calculation of the Service Fee reduction bonus at any time.
Payment Practices. PonyEx will process the Sender payment on your behalf through a third-party payment processing functionality. We will use commercially reasonable efforts to remit amounts owed to you at least once a week. In the event that a Sender payment is not honored or is otherwise unsuccessful (bank card declined), PonyEx will make best effort in reaching the Sender to resolve the payment issue and PonyEx will then remit your payment as soon as the Sender makes a successful, follow up payment.
Cancellation Charges. You acknowledge and agree that Sender may elect at any time to cancel aDelivery Service request that has already been accepted by you via the PonyEx App. In the eventthat a Sender cancels an accepted request for Delivery Services, PonyEx may charge the Sender a cancellation fee on your behalf (“Cancellation Fee”). If charged, the Cancellation Fee shall be deemed the Fare for the cancelled Delivery Services for the purpose of remittance to you hereunder.
Taxes. You acknowledge and agree that you are required to: (a) complete all tax registration obligations and calculate and remit all tax liabilities related to your provision of Delivery Services, including all Service Fees paid to you, as required by applicable law; and (b) provide PonyEx with all relevant tax information if and as requested by PonyEx. You further acknowledge and agree that you are responsible for taxes on your own income arising from the performance of Delivery Services.
8.1 Responsibilities of Sender regarding Delivery Requests
In order to request a Delivery, you, the Sender, will have to specify certain information about theDelivery request which may include the pick-up address, the name of the recipient and destination address, the size of delivery (Pony, PonyEX, PonyXL, or PonyExpress), a descriptionof the items you are requesting to be delivered (“Items”), the contact information of you and the recipient, the date and time of pick-up and the acceptable time allowance between pick-up and delivery subject to unforeseen or delivery obstacles outside the control of Driver such as weather, traffic, delivery vehicle breakdown, illness and/or recipient availability.
Using the address you provide, PonyEx will use commercially reasonable efforts to find you with a Driver to perform the Delivery request for you and will provide the Driver applicable details regarding the Delivery request. If no Drivers are available, PonyEx will notify you that there are currently no Drivers available to perform the Delivery request, at which point PonyEx will have no further obligation to attempt to find you a Driver for the applicable Delivery request.
For Pony and PonyEX size Delivery requests, upon pickup, Sender is responsible for bringing Item(s) to a specified exterior door or garage of Sender. Upon Delivery, Driver will deliver Item(s) to a designated front door, garage, or specified exterior door of Recipient.
For PonyXL and PonyExpress size Delivery requests, upon pick-up Sender is responsible for loading the Item(s). Upon Delivery, the Sender or Recipient is responsible for unloading the Item(s) at the delivery destination. Driver may help upon Driver’s own discretion. Upon bookingthe delivery, Sender may request, for an additional fee, a second vehicle and Driver to assist in the delivery and/or request Driver assistance in loading and unloading the Item(s). Sender will still be responsible to provide the additional manpower required to load or unload any items a delivery driver could reasonably not do alone.
At no point between pick-up and delivery will Sender be permitted to ride in Driver’s Vehicle with the Driver unless the Driver is the Sender.
If Driver must wait for longer than twenty-minutes beyond the scheduled pickup time due to your delay, Driver may charge you and you will pay an additional Wait Fee (“Wait Fee”) every 15 minutes past the initial twenty minute scheduled pickup time.
8.2 Financial Terms
Calculation of Fees. You will be charged a Fare for each completed Delivery Service provided to you by a Driver, calculated based upon Delivery type fee for Pony, PonyEX, PonyXL and/or PonyExpress delivery designation which contemplates the size and/or weight of the Item(s) to bedelivered, vehicle size, mileage, additional fees (urgency, weight, extra person fee) plus any applicable tolls and taxes, less any promo codes or credits available to you. A minimum Fare designated by PonyEx will apply regardless of promo codes or credits used (“Minimum Fare”). In addition, you will be required to pay the Wait Fee identified in section 7.11 for a delay in pick-up.
Payment for Delivery Services. Payment of the Fare shall be made through the payment processing made available through the PonyEx App and shall be considered the same as paymentmade directly by you to the Driver. Fare(s) paid by you are final and non-refundable, unless otherwise determined by PonyEx.
Unless otherwise agreed, PonyEx accepts identified credit card and Paypal through its third partypayment processor. Upon scheduling a Delivery, payment will be required in advance. Your payment includes all final Fares, fees, taxes, and gratuity, if desired, which will be combined for a total amount to be charged to you for the Delivery Services. If the delivery is unable to be completed due to the driver or PonyEx, PonyEx will refund your full payment to Sender. Further, Sender will be refunded if properly cancelled within the accepted cancellation period as outlined in Section 8.6.
Tip or Gratuity. PonyEx’s Fares do not designate any portion of the stated PonyEx Fare as a tip or gratuity to the Delivery Provider. Gratuities are voluntary and additional.
Delivery Confirmation. At the Delivery destination, Driver shall confirm delivery and Sender will receive via SMS Text or email, as requested, a Delivery confirmation including a photo of the delivered Item(s) (“Delivery Confirmation”).
After receiving the Delivery Confirmation, Sender will be prompted to leave a review and will be given the option to “Favorite” the Driver.
Senders may have the option of requesting a “Favorited” Driver when booking future Delivery requests. Company will attempt to accommodate Sender’s request for a Favorited Driver, but cannot and does not guarantee that a Favorited Driver will be available.
8.3 Undeliverable Items
Sender shall be assessed a $500 fee if the Delivery Services are timely provided as agreed but due to the size, weight or nature of the Item or due to the unavailability of the Recipient the Item cannot be delivered as agreed at the requested Delivery location/destination, unless the Sender orRecipient does within one hour provide the necessary, albeit delayed, delivery measures called for by the Delivery request. In addition, when delivery is delayed as set forth in this section the Wait Fee defined above shall be charged to the Sender.
8.4Confirmation of Driver Identification and Capability
Upon pick-up, it is Sender’s responsibility to confirm the Driver’s identification to Sender’s satisfaction. This can be done by matching the Driver’s identification with the information provided by the PonyEx App prior to placing the Item(s) with Driver for delivery.
Upon pick-up, it is Sender’s responsibility to independently assess the adequacy of Driver’s delivery capability by observation of the Driver and the Driver’s Vehicle. Upon pick-up and placing Item(s) in the possession of Driver, Sender acknowledges the adequacy of Driver’s and Vehicle’s delivery capability.
8.5 Sender Responsibilities regarding Items for Delivery
Sender should leave any package or exemplary package containing an Item for delivery open for inspection by Driver. If a Sender doesn’t leave the package open, Driver always has the right to require Sender to open the package or exemplary package to inspect Item(s) before Driver accepts the package(s) for delivery. As to new-in-box Item(s) in a package of a third party or baggage of third-parties, Driver has the responsibility to inspect the outside of the package or baggage to make Driver’s independent decision to accept the package for delivery. Upon acceptance of the package or baggage for delivery by Driver, Sender’s obligation of disclosure asto the Item(s) for delivery has been met.
Upon pick-up, Driver shall note and memorialize by written memo or photograph any damage to the Item(s), packages or baggage before accepting the Item for delivery. Any damage so noted ormemorialized, shall be the responsibility of Sender and no Driver.
In all cases, Sender has the responsibility to package items appropriately based on nature of the Item, level of transportation risk, fragility, other factors specific to the individual Item, the Vehicle offered by Driver, to ensure the safety and integrity of the Item or compliance with all applicable laws.
In no case shall PonyEx be liable for loss or damage to any Item associated with a Delivery request. PonyEx Inc. has no and will have no responsibility to protect Sender’s Item(s) under PonyEx Protection Plan for any loss of, or damage to, any Item prepared by Sender for delivery.
8.6 Cancellation Policy
PonyEx will charge Sender and process payment by Sender for a Cancellation Fee published on the PonyEx App for each late-cancelled Delivery request and/or for each no-show at pick-up. Sender may request a cancellation of a Delivery any time before the Delivery request has been accepted by Driver. A Delivery request is deemed late-cancelled when the Sender cancels the Delivery request after Driver has accepted the Delivery request (“Late-Cancelled Delivery Request“).
A pick-up is deemed a no-show when, subject to delay and a Wait Fee described above, you present Item(s) for pick-up more than fifteen (15) minutes after the agreed pick-up/drop-off timewithout calling, messaging or otherwise contacting the Driver through the PonyEx App, (ii) present Item(s) for pick-up more than 30 minutes after the agreed pick- up/drop-off time, if you have contacted the Driver or (iii) if you ultimately fail to present Item(s) for pick-up by Driver at the requested time and place as designated in the Delivery request (“No-Show“).
In the case of a no-show, the Driver will report a No-Show through the PonyEx App. A No-Show will cause the existing Delivery request to be cancelled.
The Cancellation Fee for Late-Cancelled Delivery Requests will be $10 for a designated Pony or PonyEx size Delivery request or $20 for a designated PonyXL or PonyExpress Delivery request. PonyEx reserves the right to change the published Cancellation Fee from time to time.
The Cancellation fee will be retained by PonyEx and Driver from the amount collected upon making the Delivery request.
PonyEx may temporarily suspend your account after your second Late-Cancelled Delivery Request or second No Show and may permanently terminate your account upon your third Late-Cancelled Delivery Request or No-Show.
9. PONYEX PROTECTION PLAN
9.1 Limited Protection
Any recovery from PonyEx for damage, loss or theft to any Item is limited under the PonyEx Protection Plan. PonyEx insures each Item against damage, loss or theft up to $100 per Delivery.
In no case shall PonyEx’s limited liability to Sender for loss, damage or theft to any Item during Delivery exceed the Item’s actual, documented costs to repair or replace the Items.
9.2 Filing a Claim
Sender shall have forty-eight (48) hours after delivery to file a claim with firstname.lastname@example.org for claims valued at $100 and less. If additional insurance has been purchased, please refer to thethird party insurance company for claim submissions. Sender waives any claim not submitted timely.
10. DRIVER OR SENDER ACTIONS LEADING TO TEMPORARY SUSPENSION AND/OR PERMANENT TERMINATION OF ACCOUNTS
Notwithstanding any of the forgoing, and without limiting any other of its remedies at law or in equity, PonyEx may temporarily suspend and/or permanently terminate any Driver or Sender PonyEx account and access to the PonyEx App and any participation in Delivery Services if:
PonyEx may temporarily suspend a User’s account while investigating any incident or action that could lead to PonyEx permanently terminating your account and/or access to the PonyEx App. Your account may be suspended for such time as PonyEx determines in its sole discretion. You may provide PonyEx notice in writing of any extenuating circumstances surrounding the events leading to the suspension and/or termination which PonyEx may consider in its sole and absolute discretion when making decisions regarding the status of your account and access to thePonyEx App.
11.NON-DISCLOSURE, NON-COMPETE, NON-CIRCUMVENTION AND NON-SOLICITATION
11.1 Proprietary Information.
You acknowledge and agree that PonyEx has developed and owns the PonyEx App which finds and connects Driver and Sender who, but for the PonyEx App, would not know about each other or would not otherwise be able to identify how Driver and Sender may interact for Deliver Services.
That is, the identity of Sender and each first and subsequent Delivery request by a Sender and theidentity of Driver and each first and subsequent Delivery Service provided by Driver constitute trade secret information of PonyEx.
n exchange for this finding service and the connection and introduction of Driver to Sender and of Sender to Driver, you agree that PonyEx is appointed as your payment collection agent for all deliveries requested by Sender and all delivery services provided by Driver occurring after the first introduction of Driver and Seller via the PonyEx App.
11.2 Non-Disclosure Agreement
In order the maintain the proprietary and confidential nature of the identity of Sender and Driver,of the Delivery requests of Sender and of the Delivery Services of Driver, each Driver and Sender agree as follows:
Driver will not disclose any Delivery request of a Sender to any other person or entity unassociated with PonyEx or the PonyEx App who are not bound by all of the same obligations as Driver under these Agreements.
Sender will not disclose any Delivery Service of a Driver to any other person or entity unassociated with PonyEx or the PonyEx App who are not bound by all of the same obligations as Sender under these Agreements.
11.3 Non-Use and Non-Compete Agreement
Driver agrees not to use or compete with PonyEx’s service of finding Delivery requests including the use of any Sender’s identity, location or business identified using the PonyEx App for any Delivery subsequent to the first Delivery involving Driver and Sender unless the subsequent Delivery is facilitated using the PonyEx App.
Sender agrees not to use or compete with PonyEx’s service of finding Delivery Services through the PonyEx including the use of any Driver’s identify or Vehicle identified using the PonyEx App for any Delivery subsequent to the first Delivery involving Driver and Sender unless the subsequent Delivery is facilitated using the PonyEx App.
11.4 Non-Circumvention Agreement.
Driver and Sender agree not to circumvent the payment collection service of PonyEx by (i) dealing directly with each other outside of the PonyEx App subsequent to any Delivery involvingDriver and Sender resulting from use of the PonyEx App or (ii) altering the Delivery request or Items to be delivered among themselves independent of PonyEx or the PonyEx App. Driver agrees to refrain from providing any Delivery Services directly or indirectly with any Sender or simultaneously with the same Sender or entity or person related to or associated with Sender unless Driver does so through the PonyEx App. Sender agrees to refrain from making any Delivery request directly or indirectly with any Driver or simultaneously with the same Driver orentity or person related to or associated with Driver unless Sender does so through the PonyEx App.
Driver agrees that Driver will not solicit any delivery request from a Sender first identified to Driver directly through the PonyEx App or indirectly by another Driver or Send having or having had access to PonyEx App unless that solicitation occurs using the PonyEx App to acceptthe delivery request.
Sender agrees that Sender will not solicit any delivery services from a Driver first identified to Sender directly through the PonyEx App or indirectly by another Driver or Send having or having had access to PonyEx App unless that solicitation occurs using the PonyEx App to seek the delivery services.
11.6 Duration of Agreements
11.7 Destruction of Driver/Seller Information
In the event it becomes necessary for PonyEx to enforce the provision of section 11, Driver and Sender agree to subject to the ADR provisions of section 12.
12. GENERAL PROVISIONS.
12.1 Governing Law, Arbitration and Venue. This End-User License Agreement shall be governed by the laws of the State of Utah without giving effect to any conflict of laws principles that may provide the application of the law of another jurisdiction.
Disputes as to this End-User License Agreement, except those causing irreparable harm and requiring injunctive relief discussed below, shall be resolved using arbitration. The application of the United Nations Convention on the International Sale of Goods is hereby expressly excluded. Such arbitration shall be initiated through an established alternative dispute resolution provider ("ADR Provider") that offers arbitration as set forth in this section and under the rules of such ADR Provider, except to the extent such rules are in conflict with this End-User License Agreement. The party demanding arbitration will propose an ADR Provider and the other party shall not unreasonably withhold consent to use such ADR Provider. The ADR Provider and the parties must comply with the following rules: a) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; b) all arbitration proceedings shall be held in English; c) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwisemutually agreed by the parties; and d) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Each party shall bear its own costs (including attorney fees) and disbursements arising out of the arbitration, and shall pay an equal share of thefees and costs of the ADR Provider.
You acknowledge that breach of this End-User License Agreement by you many cause irreparable injury to PonyEx for which monetary damages would not be an adequate remedy and,therefore, PonyEx will be entitled to seek injunctive relief (including specific performance) in a court of competent jurisdiction. To this end, you and PonyEx agree to submit to the jurisdiction of, and agree that venue is proper in, the state courts located in Utah and the federal courts located in the district in Utah where PonyEx has its principle place of business.
12.3 Severability; Language. If any provision of this End-User License Agreement is found to be invalid or unenforceable, such provision will be deleted, changed and interpreted to accomplish the objectives of this End-User License Agreement to the greatest extent possible under applicable law and the remaining provisions will remain in full force and effect. The parties of this End-User License Agreement have expressly required that the present Agreement be drawn up in the English language.
12.4 Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of the same provision or any other provision on any other occasion.
12.5 Entire Agreement. This End-User License Agreement and any terms whether express or implied included in the PonyEx App itself as to data gathering, advertising or in-App purchases constitutes the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties. No modification of or amendment to this End-User License Agreement, nor any waiver of any rightsunder this End-User License Agreement, will be effective unless in writing and signed by the party to be charged (which, in the case of the PonyEx, shall require the signature of a duly authorized officer of the PonyEx).
12.6 Assignment. This Agreement is personal to you. You may not assign any right you may have under this Agreement to any person or entity except as may occur by operation of law. PonyEx may assign any of its ownership and rights to another without requiring any consent from you.
PonyEx shall maintain the privacy of all data of Driver and Sender provided to PonyEx unless disclosure is required by the functionality of the PonyEx App or by applicable law. Driver and Sender shall maintain the privacy of all data of Driver and Sender received using the PonyEx App unless disclosure is required by the functionality of the PonyEx App or by applicable law.