This Services Agreement (“Agreement”) is entered into between Vugo, Inc. with a place of business at 1161 Wayzata Blvd E. Suite #172 Wayzata, MN 55391(“Vugo”), and the Drive (“Driver”). This Agreement includes and incorporates these Terms and Conditions and contains, among other things, warranty disclaimers, liability limitations and use limitations. There shall be no force or effect to any different terms of any related purchase order or similar form even if signed by the parties after the date hereof.
1. SOFTWARE SERVICES AND SUPPORT
1.1 Subject to the terms of this Agreement, Vugo will use commercially reasonable efforts to provide Driver the Services. As part of the registration process, Driver will identify an administrative user name and password for Driver’s Vugo account. Vugo reserves the right to refuse registration of, or cancel passwords it deems inappropriate.
1.2 Vugo will provide Driver with reasonable technical support services during the Terms of this Agreement. Drivers are encouraged to report issues via e-mail to email@example.com.
2. RESTRICTIONS AND RESPONSIBILITIES
2.1 Driver will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Vugo or authorized within the Services); use the Services in any manner not expressly permitted by Vugo.
2.2 Further, Driver may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.2277014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
2.3 Driver represents, covenants, and warrants that Driver will use the Services only in compliance with Vugo’s standard published policies then in effect and all applicable laws and regulations. Driver hereby agrees to indemnify and hold harmless Vugo against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Driver’s use of Services.
2.4 Although Vugo has no obligation to monitor Driver’s use of the Services, Vugo may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
2.5 Driver shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, mobile tablet, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Driver shall also be responsible for maintaining the security of the Equipment, Driver account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Driver account or the Equipment with or without Driver’s knowledge or consent. Driver is responsible for ensuring the Equipment is maintained in proper working conditions. Driver agrees to pay Vugo for all loss, damage or not returning Vugo owned equipment within 30 days of termination.
2.6 Driver shall only use the mobile tablet exclusively for the Vugo Application with for-hire passengers.
3. CONFIDENTIALITY; PROPRIETARY RIGHTS
3.1 The Driver understands that the Vugo has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Vugo includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Driver includes non-public data provided by Driver to Vugo to enable the provision of the Services (“Driver Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
3.2 Vugo shall own all right, title and interest in and to the Driver Data, as well as any data that is based on or derived from the Driver Data and provided to Driver as part of the Services. Vugo shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing.
4. PAYMENT OF FEES
4.1 Driver will be paid an agreed upon amount per month for each month that Driver completes at least 200 trips. If Driver does not complete the minimum number of trips as measured by Vugo, Driver shall not be entitled to any fees. Vugo will pay driver via paypal.
4.2 Driver will pay Vugo $9 per month for access to its Software Services for Drivers using our Tablet software. Driver agrees that Vugo may charge Driver’s credit card at the beginning of each month for this fee.
4.3 If driver didn't purchase their own equipment from Vugo. Driver agrees that Vugo will initially authorize up to a deposit for equipment being borrowed, Vugo may charge up to $2000 on the credit card if the Equipment is lost, damaged, stolen or not returned within 30 days after the date of termination. Vugo may terminate this Agreement immediately and withhold all fees owed to Driver if Driver does not maintain accurate and up-to-date credit card information in addition to further collection actions for all fees owed and the cost of equipment.
5. TERM AND TERMINATION
5.1 Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.
5.2 Vugo may terminate this Agreement without cause by providing 30 days written notice to Driver.
5.3 In addition to any other remedies it may have, either party may also terminate this Agreement immediately (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. Driver will pay in full for the Services up to and including the last day on which the Services are provided and will return all Equipment in working order. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
6. WARRANTY AND DISCLAIMER
Vugo shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Vugo or by third-party providers, or because of other causes beyond Vugo’s reasonable control, but Vugo shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, VUGO DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND VUGO DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
7. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, VUGO AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND VUGO’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY DRIVER TO VUGO FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT VUGO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Driver except with Vugo’s prior written consent. Vugo may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Driver does not have any authority of any kind to bind Vugo in any respect whatsoever. Al notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of Minnesota without regard to its conflict of laws provisions. Any such action must be brought in the state or federal courts in Minnesota, and all parties hereto expressly consent to personal jurisdiction in Minnesota.