TAILGATE DOES NOT PROVIDE TRANSPORTATION SERVICES AND IS NOT A TRANSPORTATION CARRIER OR A FREIGHT CARRIER OR FREIGHT HAULER. IT IS UP TO INDEPENDENT, THIRD PARTY DRIVERS OR VEHICLE OPERATORS TO OFFER ITEM RELOCATION SERVICES THAT ARE ARRANGED THROUGH USE OF OUR SERVICES. TAILGATE OFFERS INFORMATION AND A METHOD TO ARRANGE SUCH THIRD PARTY TRANSPORTATION SERVICES, BUT DOES NOT AND DOES NOT INTEND TO PROVIDE TRANSPORTATION SERVICES OR ACT IN ANY WAY AS A TRANSPORTATION CARRIER OR FREIGHT HAULER AND HAS NO RESPONSIBILITY OR LIABILITY FOR ANY TRANSPORTATION SERVICES PROVIDED TO YOU BY SUCH THIRD PARTIES. IT IS UP TO THE HAULER OR VEHICLE OPERATOR TO DECIDE WHETHER OR NOT TO OFFER TO TRANSPORT THE ITEM(S) OF THE USER AS REQUESTED THROUGH THE TAILGATE PLATFORM, AND IT IS UP USER TO DECIDE WHETHER OR NOT TO ACCEPT THE SERVICE FROM ANY DRIVER CONTACTED THROUGH THE TAILGATE PLATFORM. ANY DECISION BY A USER TO OFFER OR ACCEPT THE SERVICES ONCE SUCH USER IS MATCHED THROUGH THE TAILGATE PLATFORM IS A DECISION MADE IN SUCH SOLE DISCRETION OF THE USER.
IMPORTANT, PLEASE READ: THE TERMS INCLUDE A CLASS ACTION WAIVER AND REQUIRE BINDING ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS.
PLEASE NOTE THAT these Terms are subject to change by Tailgate in its sole discretion at any time. When changes are made, we will make a new copy of the Terms available for your review. We will also update the “Last Updated” date at the top of these Terms. We will require you to provide consent to the updated Terms in a specified manner before further use of the Application or the Services are permitted.
User Representations, Warranties, and Agreements
• Services. Tailgate provides a mobile application platform to connect persons (“Users”) who require assistance in connection with the movement, relocation, messengering of personal items to certain destinations with person’s (“Drivers”) willing to use their vehicles to deliver or transport the items and assist with the move of or relocation of such personal items to those destinations. For purposes of this Agreement these services shall collectively be defined as the “Services”. This agreement describes the terms and conditions that will govern Your use of and participation in the mobile application platform know as the Tailgate Platform
• Requirements for Use of Our Site and Services. In order to use our Application, Site and Services as either a Driver or User, all of the following requirements apply:
You must be at least 18 years of age.
You must register for an account on our Site to schedule a pickup as a User or provide the function of a Driver. You agree not to create an account using a false identity or this information, or on behalf of someone other than yourself unless you have been granted the legal authority to do so. You shall have no ownership or other property interest in your account.
You must safeguard your username and password information; you may not share this information with anyone else and are responsible for all activity on your account. You agree that you shall monitor your account to restrict use by minors and you shall not allow your children to use your account.
You agree to provide and maintain true, accurate, current and complete information about yourself as prompted by the registration form.
Tailgate reserves the right to remove or reclaim any usernames at any time and for any reason.
You must provide all equipment and software necessary to connect to the Tailgate platform including but not limited to, a mobile device that is suitable to connect with and use the Tailgate platform if you are a Driver or User. You are solely responsible for any fees, including Internet connection or mobile fees that you incur when accessing the Tailgate platform.
You must treat all information about participants in our Services, including profile information about Drivers and Users, and other User Submissions (defined below) as confidential information. You may use this information only for the purpose of fulfilling your obligations as a participant in the Services, and you may not share this information with any third party.
Fees - You agree to pay all fees for services rendered
Abandonment – You agree to pay all additional fees of up to $250 if driver is unable to unload cargo at requested location.
All requests are at the sole discretion of the driver. Driver may cancel service at any time.
User agrees to pay any fees associated with declined payments if the payment method is rejected by the payment processor.
• Mobile Application
Subject to your compliance with these Terms, Tailgate grants you a limited non-exclusive, non-transferable, non-sub-licensable, revocable license to download, install and use a copy of the Application on a mobile device that you own or control and to run such copy of the Application solely to access the Services for your own internal purposes. Furthermore, with respect to any Application accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you will only use the App Store Sourced Application (i) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (ii) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service.
You acknowledge and agree that the availability of the Application and the Services is dependent on the third party from whom you received the Application license, e.g., the Apple iPhone app stores (“App Store”). You acknowledge that these Terms are between you and Tailgate and not with the App Store. Tailgate, not the App Store, is solely responsible for the Services and Application, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g. product liability, legal compliance, or intellectual property infringement). In order to use the Application, you must have access to the internet, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with the Application or Services. You agree to comply with, and your license to use the Application is conditioned upon your compliance with, all applicable third party terms of agreement (e.g., the App Store’s terms and policies) when using the Application and the Services. You acknowledge that the App Store (and its subsidiaries) are third party beneficiaries of these Terms and will have the right to enforce them.
The following applies to any App Store Sourced Application:
You acknowledge and agree that (i) these Terms are concluded between you and Tailgate only, and not Apple, and (ii) Tailgate, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service.
You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Tailgate and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Tailgate.
You and Tailgate acknowledge that, as between Tailgate and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
You and Tailgate acknowledge that, in the event of any third party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between Tailgate and Apple, Tailgate, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms.
You and Tailgate acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms as related to your license of the App Store Sourced Application, and that, upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms as related to your license of the App Store Sourced Application against you as a third party beneficiary thereof.
Without limiting any other provision of these Terms, you must comply with all applicable third party terms of agreement when using the App Store Sourced Application.
Mobile Software from the Google Play Store. The following applies to any Mobile Software you acquire ("Google-Sourced Software"): (i) you acknowledge that these Terms are between you and Tailgate only, and not with Google, Inc. ("Google"); (ii) your use of Google-Sourced Software must comply with Google's then-current Google Play Store Terms of Service; (iii) Google is only a provider of the Google Play Store where you obtained the Google- Sourced Software; (iv) Tailgate, and not Google, is solely responsible for its Google-Sourced Software; (v) Google has no obligation or liability to you with respect to Google-Sourced Software or these Terms; and (vi) you acknowledge and agree that Google is a third-party beneficiary to these Terms as it relates to Tailgate’s Google-Sourced Software.
Certain software code incorporated into or distributed with the Application may be licensed by third parties under various “open-source” or “public-source” software licenses (such as the GNU General Public License, the GNU Lesser General Public License, the Apache License, the Berkeley Software Distribution License, and the Sun Public License) (collectively, the“Open Source Software”). Notwithstanding anything to the contrary in these Terms, the Open Source Software is not licensed under Section 3(a) and instead is separately licensed pursuant to the terms and conditions of their respective open-source software licenses. You agree to comply with the terms and conditions of such open-source software license agreements.
When you use our Application as an Driver, we collect location information from the GPS functionality on your device. You hereby authorize us and our Services to take such actions and access such data. You can grant or revoke your consent at any time and prevent us from continuing to access your GPS information by changing the settings on your device, but our Services may not function as intended. You hereby authorize the Application to access such components of your mobile device. You acknowledge and agree that: (a) such information may be made available to Drivers (if you are an User) or Users (if you are a Driver); and (b) Tailgate merely makes this information available upon your request and is not responsible for the correctness of such information and any use of such information by third parties.
Certain features of the Services require access to and use of your device's map features or functionality or other third party services. Any use of those features will be subject to the terms and conditions applicable to such maps or other application. By using the Services, and depending on your device’s operating system, you may also agree to the Google Maps end-user terms located at http://www.google.com/help/terms_maps.html (as may be changed from time to time by Google). It is your sole responsibility to review the terms and conditions that apply to Google Maps before using it; these Terms do not apply to any activities conducted via the Google Maps site. Likewise, by using Services, you may also agree to the Apple end-user terms located at http://www.apple.com/legal/sla/ (as may be changed from time to time by Apple). It is your sole responsibility to review the terms and conditions that apply to Apple mobile devices before using them.
You understand that the Application and the Services are evolving. As a result, Tailgate may require you to accept updates to the Application or other software that you have installed on your computer or mobile device. You acknowledge and agree that Tailgate may update the Application with or without notifying you. You may need to update third party software from time to time in order to receive the Services or use the Application.
• Deactivation of Account
Tailgate may immediately deactivate your Account as a Driver or User if you violate these Terms or the then-current Tailgate requirements.
You may not participate as a Driver or a User in the Services or use the Site after your Account has been deactivated unless and until re-authorized by Tailgate.
• Communication from Tailgate. You consent to e-mail and text message/SMS communication from Tailgate and other participants in the Services, including Drivers and Users. We do not charge for this Service. However, you are responsible for all message and data rates that may be charged from your carrier for these messages. You may not opt-out from these messages, as they are necessary for providing the Services. We will not be liable for any delays in the receipt of any SMS messages as delivery is subject to effective transmission from your mobile service operator.
• Intellectual Property. The Tailgate platform and associated elements are protected by copyright laws throughout the world and subject to other intellectual property and proprietary rights and laws. Subject to these Terms, Tailgate grants you a limited license to reproduce portions of the Tailgate platform for your internal use. Unless otherwise specified by Tailgate in a separate license, your right to use any Tailgate platform that you access or download through the Application or the Services is subject to these Terms. Except for User Submissions (defined below) and third party content, the Site and the Services, including text, software, graphics, photos, interactive features and other content and the trademarks and logos displayed on the Site are owned by Tailgate and its licensors and are subject to copyright, trademark, and other intellectual property rights under U.S. and international laws.
• Driver Representations, Warranties, and Agreements
By providing Services as a Driver on the Tailgate Platform, you represent, warrant, and agree that:
Driver will not allow any User to sit, ride, or occupy the Driver’s vehicle as part of the service or transporting user payload.
You possess a valid driver’s license and are authorized and medically fit to operate a motor vehicle and have all appropriate licenses, approvals and authority to drive in all jurisdictions in which you provide Services.
You own, or have the legal right to operate, the vehicle you use when providing Services, and such vehicle is in good operating condition and meets the industry safety standards and all applicable statutory and state department of motor vehicle requirements for a vehicle of its kind.
You will not engage in reckless behavior while driving, drive unsafely, operate a vehicle that is unsafe to drive, be involved in a motor vehicle accident or collision of any kind, permit an unauthorized third party to accompany you in the vehicle while providing Services, provide Services as a Driver while under the influence of alcohol or drugs, or take action that harms or threatens to harm the safety of the community or third parties.
You will only provide Services using the vehicle that has been reported to, and approved by Tailgate and for which a photograph has been provided to Tailgate and you will not transport any items in an unsecure or dangerous manner.
You will not make any misrepresentation regarding Tailgate the Tailgate Platform, the Services or your status as a Driver.
You will not, while providing the Services, operate as a public carrier or taxi service, accept street hails, charge for rides (except as expressly provided in this Agreement), demand that a rider pay in cash, or use a credit card reader, such as a Square Reader, to accept payment or engage in any other activity in a manner that is inconsistent with your obligations under this Agreement.
Driver agrees will inspect, document and photograph the cargo and note any preexisting damage that is evident of any and all items to be transported. In the event the User claims its items were damaged in transport, the Driver will note and describe the alleged damages, photograph the same and immediately notify Tailgate.
You will not attempt to defraud Tailgate or Users on the Tailgate Platform or in connection with your provision of Services. If we suspect that you have engaged in fraudulent activity we may withhold applicable Fares or other payments for the ride(s) in question.
You agree that we may obtain information about you, including your criminal and driving records, and you agree to provide any further necessary authorizations to facilitate our access to such records during the term of the Agreement.
You have a valid policy of liability insurance (in coverage amounts consistent with all applicable legal requirements) that names or schedules you for the operation of the vehicle you use to provide Services.
Driver and Driver’s Insurance Policy shall be solely responsible for and provide coverage for any and all claims or incidents, which results from or is alleged to result from the operation of the insured vehicle that such Driver uses to transport, move, relocate, or the messengering of items of Users, including, but not limited to personal injuries, death, and property damages.
In the event of any claim or a motor vehicle accident, Driver will be solely responsible for reporting said incident in compliance with the requirements of any applicable statutory or department of motor vehicles requirements or as required by User’s insurance company. Further, Driver shall report any and all said incident, claim, or accident promptly with Driver’s insurance carrier.
You will pay all applicable federal, state and local taxes based on your provision of Services and any payments received by you.
Driver is at least 21 years of age
Driver agrees to not transport Hazardous Materials. Hazardous Materials Regulations which includes but is not limited to: explosives, gases, flammable liquids, flammable solids, poisonous or infectious substances, radioactive material, corrosives.
• User Submissions. The Tailgate platform may enable you to post, upload, e- mail, transmit or otherwise make available, your own content, information data or materials through the Services (“User Submissions”). User Submissions are the sole responsibility of the party from whom such User Submissions originated. You grant us a non-exclusive, fully-paid, world-wide, transferable, perpetual, irrevocable, royalty-free license, with the right to grant sublicenses, to display, publicly perform, distribute, store, transcode, broadcast, transmit, reproduce, edit, modify, create derivative works, and otherwise use your User Submissions in any manner, in any medium, for any purpose in connection with Tailgate, the Site or the Services. You acknowledge and agree that you have no expectation of compensation or confidentiality with respect to any User Submission. User Submissions may be available to all users of the Site. We may refuse or remove User Submissions at any time. You represent and warrant that: (a) you own all rights in your User Submissions or you have acquired all necessary rights in your User Submissions to enable you to grant Tailgate the rights in your User Submissions described above, and (b) your User Submissions do not infringe the intellectual property rights, privacy rights, publicity rights, or other rights of any third party. We have no obligation to pre- screen User Submissions or any other content on the Site or Services, although we reserve the right in our sole discretion to pre-screen, refuse or remove such content.
• Feedback. If you provide us with any suggestions or feedback, we may use these suggestions or feedback for any purpose without attribution, accounting or compensation to you on a perpetual basis.
• Third Party Websites and Service Providers. As a part of the Tailgate platform, you may have access to materials that are hosted by another party (including the maps referenced above in Section 3). You agree that it is impossible for Tailgate to monitor such materials and that you access these materials at your own risk. The Site may provide information from and links to third party websites (“Third Party Websites”) and advertisements for third parties (collectively, “Third Party Websites & Ads”). When you click on a link to a Third Party Website & Ad, we will not warn you that you have left our Website and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third Party Websites are not under the control of Tailgate. Tailgate is not responsible for any Third Party Websites & Ads. Tailgate provides these Third Party Websites & Ads only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third Party Websites & Ads, or their products or services. You use all links in Third Party Websites & Ads at your own risk. When you leave our Website, our Terms no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third Party Websites, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
Disclaimer. YOUR USE OF THE TAILGATE PLATFORM IS AT YOUR SOLE RISK. THE TAILGATE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE”. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, TAILGATE AND ITS OFFICERS, EMPLOYEES, DIRECTORS, SHAREHOLDERS, AFFILIATES, AGENTS, AND LICENSORS (COLLECTIVELY, THE “COVERED PARTIES”) DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED (INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE AND NON-INFRINGEMENT), INCLUDING WITHOUT LIMITATION WITH RESPECT TO ANY BOOSTER SEATS PROVIDED BY TAILGATE OR THE INSTALLATION OF SUCH BOOSTER SEATS. THE COVERED PARTIES MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE ACCURACY OR COMPLETENESS OF CONTENT AVAILABLE ON OR THROUGH THE TAILGATE PLATFORM OR THE DRIVERS, USERS, AFFILIATES OR OTHER USERS.
DRIVERS, USERS, AND AFFILIATES ARE NOT COVERED PARTIES WITHIN THE MEANING OF THIS AGREEMENT. DRIVERS AND AFFILIATES ARE NOT AGENTS, EMPLOYEES, JOINT VENTURERS, AFFILIATES, FRANCHISEES OR PARTNERS OF TAILGATE. WE DO NOT CONTROL, OR HAVE THE RIGHT TO CONTROL, DRIVERS AND AFFILIATES, EXCEPT TO THE EXTENT EXPRESSLY SET FORTH IN THESE OR ANY APPLICABLE SUPPLEMENTAL TERMS OR AS REQUIRED BY APPLICABLE STATE AND/OR FEDERAL LAW. WE ARE NOT RESPONSIBLE FOR THE AVAILABILITY OR PERFORMANCE OF DRIVERS. WE DO NOT GUARANTEE USERS THAT ANY REQUEST WILL BE ACCEPTED BY DRIVERS OR THAT DRIVERS WILL RECEIVE ANY PARTICULAR NUMBER OF SERVICE REQUESTS BY USERS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WE ARE NOT LIABLE FOR THE ACTS, ERRORS, OMISSIONS, REPRESENTATIONS, WARRANTIES, BREACHES OR NEGLIGENCE OF ANY SUCH DRIVERS OR USERS OR FOR ANY PERSONAL INJURIES, DEATH, PROPERTY DAMAGE, OR OTHER DAMAGES OR EXPENSES RESULTING THEREFROM. WE HAVE NO LIABILITY AND WILL MAKE NO REFUND IN THE EVENT OF ANY DELAY, CANCELLATION, OR OTHER CAUSES BEYOND OUR DIRECT CONTROL, INCLUDING THE ACTS OF DRIVERS AND USERS, AND WE HAVE NO RESPONSIBILITY FOR ANY ADDITIONAL EXPENSE, OMISSIONS, DELAYS, RE-ROUTING OR ACTS OF ANY GOVERNMENT OR AUTHORITY. WE DO NOT REPRESENT OR ENDORSE, AND SHALL NOT BE RESPONSIBLE FOR YOUR ABILITY OR INABILITY TO OFFER OR OBTAIN SERVICES USING THE PLATFORM.
Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE COVERED PARTIES (AS DEFINED ABOVE) BE LIABLE UNDER ANY THEORY OF LIABILITY (WHETHER IN CONTRACT, TORT, STATUTORY, OR OTHERWISE) FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF REVENUES, PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF SUCH PARTIES WERE ADVISED OF, KNEW OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM OR RELATING TO YOUR USE OF THE SITE OR SERVICES. IN NO EVENT SHALL THE COVERED PARTIES’ TOTAL AGGREGATE LIABILITY FOR ALL DAMAGES ARISING UNDER OR RELATED TO YOUR USE OF THE SITE AND THE SERVICES EXCEED THE GREATER OF: (I) THE TOTAL AMOUNT OF FEES WE RECEIVE FROM YOUR SERVICE REQUESTS IN THE THREE (3) MONTHS PRIOR TO THE DATE OF THE EVENT GIVING RISE TO OUR LIABILITY AND (II) ONE THOUSAND DOLLARS (U.S. $1000.00). THESE LIMITS APPLY EVEN IF A STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW LIMITS ON CERTAIN LIABILITIES SO THESE LIMITATIONS MAY NOT APPLY TO YOU.
• Release. You hereby release the Covered Parties from claims, demands any and all losses, damages, rights, claims, and actions of any kind including, without limitation, personal injuries, death, and property damage, that is either directly or indirectly related to or arises from (i) your use of the Application or Services, or (ii) any services arranged as a result of your activities through the Tailgate platform. If you are a California resident, you waive California Civil Code 1542, which says: “A general release does not extend to claims which the creditor does not now or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”
• Indemnity.You will indemnify, defend, and hold harmless the Covered Parties against any and all claims, liabilities, damages, losses, costs, expenses, fees (including reasonable attorneys’ fees and legal costs) of any kind or nature, arising from or relating to (a) your violation or breach of any provision of these Terms, the Tailgate regulations or any applicable law or regulation, whether or not referenced herein; (b) your violation of any rights of any third party, including Drivers and Users, or (c) your use of, or inability to use, the Tailgate platform or any activity or service resulting from such use. Tailgate reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will cooperate with Tailgate in asserting any available defenses. You agree that the provisions in this section will survive deactivation of your Account or the Services.
Tailgate has no responsibility whatsoever for the actions or conduct of Drivers or Users. Tailgate has no obligation to intervene in or be involved in any way in disputes that may arise between Drivers, Users, or third parties. Responsibility for the decisions you make regarding providing or accepting of the Driver or User or in the transport of Users items rest solely with You. It is each User and Driver’s responsibility to take reasonable precautions in all actions and interactions with any party they may interact with through use of the services. Tailgate may, but has no responsibility to screen or otherwise evaluate potential Drivers or Users. Users understand and accept that Tailgate has no control over the identity or actions of the Drivers and Users, and Drivers and Users use the services at their own risk.
in the event that You have a dispute with one or more Users or against one or more Drivers, You agree to release Tailgate (and Our officers, directors, agents, subsidiaries, joint ventures and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected to such disputes with other Users or Drivers or to Your use of the Tailgate platform or the Services. If You are a California resident, You waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which, if known by him or her must have materially affected his or her settlement with the debtor.”
• Right to Modify or Discontinue the Services. Tailgate reserves the right to modify or discontinue the Services with or without notice to you. Tailgate shall not be liable to you or any third party should Tailgate modify or discontinue the Services. Tailgate has no obligation to continue providing any Services. If you want to terminate any Services provided by Tailgate, you may do so by (a) notifying Tailgate at any time and (b) deleting the Application from your mobile device. Your notice should be sent, in writing, to Tailgate's address set forth below. Tailgate will not have any liability whatsoever to you for any deactivation or termination. All provisions of the Terms which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.”
ARBITRATION AND A CLASS ACTION WAIVER. Resolution of Disputes and Legal Claims
You and We agree that any legal disputes or claims between the Parties that cannot be resolved informally will be submitted to binding arbitration in Los Angeles, California. The arbitration shall be conducted by the American Arbitration Association, or any other established ADR provider mutually agreed upon by the parties The prevailing party in any such arbitration will be entitled to recovery all reasonable attorney fees and costs incurred in the arbitration. Any judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. You agree that in no event shall any claim, action or proceeding by You related in any way to the Tailgate Platform and/or the Services (including Your use of the Tailgate Platform and/or the Services) be instituted more than three (3) years after the cause of action arose.
Applicability of Arbitration Agreement. All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Terms or the use of any product or service provided by Tailgate that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. This Arbitration Agreement applies to you and Tailgate, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under the Terms.
Notice Requirement and Informal Dispute Resolution. Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. A Notice to Tailgate should be sent to: 251 Little Falls Driver, Wilmington, DE 19808. After the Notice is received, you and Tailgate may attempt to resolve the claim or dispute informally. If you and Tailgate do not resolve the claim or dispute within 30 days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
Arbitration Rules. Arbitration shall be initiated through the American Arbitration Association (“AAA”), an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section. If AAA is not available to arbitrate, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of this arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the Terms. The AAA Consumer Arbitration Rules governing the arbitration are available online at www.adr.org or by calling the AAA at 1-800-778-7879. The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. 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’s fees) and disbursements arising out of the arbitration, and shall pay an equal share of the fees and costs of the ADR Provider.
Additional Rules for Non-appearance Based Arbitration: If non-appearance arbitration is elected, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties.
Time Limits. If you or Tailgate pursue arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the AAA Rules for the pertinent claim.
Authority of Arbitrator. If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and Tailgate, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the AAA Rules, and the Terms. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and Tailgate.
Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in court and are subject to very limited review by a court. In the event any litigation should arise between you and Tailgate in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND TAILGATE WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.
Confidentiality. All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This Paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Agreement shall continue in full force and effect.
Right to Waive. Any or all of the rights and limitations set forth in this Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or effect any other portion of this Agreement.
Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Company..
Small Claims Court. Notwithstanding the foregoing, either you or Tailgate may bring an individual action in small claims court.
Emergency Equitable Relief. Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.
Courts. In any circumstances where the foregoing Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located within Los Angeles County, California, for such purpose.
• Other Provisions.
No joint venture, partnership, employment, or agency relationship exists between you, Tailgate or any other participant in the Services. No joint venture, partnership, employment, or agency relationship exists between Tailgate and any Affiliate.
Tailgate shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
We may communicate with you by sending an email to the email address associated with your account, sending a text message/SMS to the cell phone number associated with your account and/or posting on the Site itself. You can provide any notices to us by sending an email to email@example.com.
Governing Law. The Terms and any action related thereto will be governed and interpreted by and under the laws of the State of Delaware, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
Any waiver or failure to enforce any provision of the Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
These Terms, and your rights and obligations hereunder, may not be assigned, delegated, or otherwise transferred by you without Tailgate’s prior written consent, and any attempted assignment, delegation, or transfer in violation of the foregoing will be null and void.
The Services can be accessed from countries around the world and may contain references to services and content that is not available in your country, including Rides. These references do not imply that Tailgate intends to announce such services or content in your country. The Services are controlled and offered by Tailgate from its facilities in the United States of America. Tailgate makes no representations that the Services are appropriate or available for use in other locations. Those who access or use the Services from other jurisdictions do so at their own volition and are responsible for compliance with local law.
If you believe that Tailgate has not adhered to these Terms, please contact Tailgate by emailing us at firstname.lastname@example.org. We will do our best to address your concerns. If you feel that your complaint has been addressed incompletely, we invite you to initiate the applicable Arbitration or Dispute Resolution procedure. You must bring any claims against any Covered Parties within one year unless the law requires a longer timeframe. Claims not filed within those limits are permanently barred.
If any provision of the Terms is legally unenforceable, that provision shall be limited to the least extent necessary to render it enforceable (or eliminated if it cannot be made enforceable) and the validity and enforceability of the remaining provisions will not be affected. No waiver of these or any applicable Supplemental Terms will be effective unless it is in an explicit writing and signed by the waiving party.
By agreeing to these Terms, Driver represents he/she is in the independent business of providing transportation services, and understands and intends that to create the relationship between the parties under these Terms is solely that of independent contracting parties of principal and independent contractor and not that of employer and employee. Driver expressly agreesthat (1) these Terms are not an employment agreement and do not create an employment relationship between Driver and Tailgate; and (2) no joint venture, franchisor-franchisee, partnership, or agency relationship is intended or created by these Terms. Driver has no authority to bind Tailgate, and Driver undertakes not to hold itself out as Driver is not an employee, agent, joint venturer, franchisee, affiliate, or partner or authorized representative of Tailgate for any purpose. In addition, for Drivers, a “Service” will begin at the point the Driver indicates their departure for their first delivery and continue until the transportation service is completed after drop off for such delivery.
Dispute Resolution—PLEASE READ.
MANDATORY AND EXCLUSIVE ARBITRATION: Tailgate and Driver mutually agree to resolve any justiciable disputes between them exclusively through final and binding arbitration instead of filing a lawsuit in court. This arbitration agreement is governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16) and shall apply to any and all claims arising out of or relating to the Terms or these Driver Terms, Driver’s classification as an independent contractor, Driver’s provision of Rides under the Terms or these Driver Terms (including any Rides provided by Driver’s personnel), the payments received by Driver and/or its personnel for providing Rides under the Terms or these Driver Terms, the termination of the terms or these Driver Terms, and all other aspects of Driver’s relationship with Tailgate, past or present, whether arising under federal, state or local statutory and/or common law.
If either Party wishes to initiate arbitration, the initiating Party must notify the other Party in writing via email, certified mail, return receipt requested, or hand delivery within the applicable statute of limitations period. This demand for arbitration must include (1) the name and address of the Party seeking arbitration, (2) a statement of the legal and factual basis of the claim, and (3) a description of the remedy sought. Any demand for arbitration by Driver must be delivered to 251 Little Falls Drive, Wilmington, DE 19808. Any demand for arbitration by Tailgate must be delivered to Driver’s last known address.
Class Action Waiver: Driver and Tailgate mutually agree that by entering into this agreement to arbitrate, both waive their right to have any dispute or claim brought, heard or arbitrated as a class action, collective action and/or representative action, and an arbitrator shall not have any authority to hear or arbitrate any class, collective or representative action (“Class Action Waiver”). Notwithstanding any other clause contained in this Agreement or the AAA Rules, as defined below, any claim that all or part of this Class Action Waiver is unenforceable, unconscionable, void or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator.
Driver agrees and acknowledges that entering into this arbitration agreement does not change Driver’s status as an independent contractor in fact or in law, that Driver is not an employee of Tailgate and that any disputes in this regard shall be subject to arbitration as provided herein.
Any arbitration shall be governed by the American Arbitration Association Commercial Arbitration Rules (“AAA Rules”), except as follows:
The arbitration shall be heard by one Arbitrator selected in accordance with the AAA Rules. The Arbitrator shall be an attorney or retired judge with experience in the law underlying the dispute.
If the Parties cannot otherwise agree on a location for the arbitration, the arbitration shall take place in the county in which Driver provided Rides under the Terms and these Driver Terms.
The Arbitrator may issue orders (including subpoenas to third parties) allowing the Parties to conduct discovery sufficient to allow each Party to prepare that Party’s claims and/or defenses, taking into consideration that arbitration is designed to be a speedy and efficient method for resolving disputes.
Except as provided in the Class Action Waiver, the Arbitrator may award all remedies to which a Party is entitled under applicable law and which would otherwise be available in a court of law, but shall not be empowered to award any remedies that would not have been available in a court of law for the claims presented in arbitration. The Arbitrator shall apply the state or federal substantive law, or both, as is applicable.
The Arbitrator may hear motions to dismiss and/or motions for summary judgment and will apply the standards of the Federal Rules of Civil Procedure governing such motions.
The Arbitrator’s decision or award shall be in writing with findings of fact and conclusions of law.
Either Driver or Tailgate may apply to a court of competent jurisdiction for temporary or preliminary injunctive relief on the ground that without such relief the arbitration provided in this Dispute Resolution provision may be rendered ineffectual.
Regardless of any other provision in the Terms or these Driver Terms, claims may be brought before and remedies awarded by an administrative agency if applicable law permits access to such an agency notwithstanding the existence of an agreement to arbitrate.
The AAA Rules may be found at www.adr.org or by searching for “AAA Commercial Arbitration Rules” using a service such as www.Google.com or www.Bing.com. Driver may also request a copy directly from Tailgate.
(g) Right To Consult With An Attorney: Driver has the right to consult with private counsel of Driver’s choice with respect to any aspect of, or any claim that may be subject to, this Dispute Resolution provision. In the event any portion of this Dispute Resolution provision is deemed unenforceable, the remainder of this Dispute Resolution provision will be enforceable. If the Class Action Waiver is deemed to be unenforceable, Driver and Tailgate agree that the Dispute Resolution provision is otherwise silent as to any party’s ability to bring a class, collective or representative action in arbitration.
Term/Termination. Tailgate and Driver agree that the term of this Agreement does not reflect an uninterrupted service arrangement, as this Agreement guarantees Driver the right to choose when to make himself/herself available and each Ride is treated as a separate service arrangement. These terms may be terminated by either the Driver or Tailgate upon seven (7) days’ written notice, or immediately upon written notice in the event of a material breach of the Terms. What constitutes a material breach is not limited by the express provisions of the Terms. After notice of termination of the Terms and these Driver Terms, Driver agrees to return the Tailgate t-shirt, booster seat, and trade dress to Tailgate within 24 hours.
Permission to Use Driver Photos. Tailgate may, or may have a third party photographer contracted by Tailgate, take photographs of Drivers (“Driver Photos”). You hereby grant Tailgate all applicable rights, consents and permissions to photograph you or to have a third party service photographer photograph you and to use, reproduce, distribute, publicly display, and publicly perform your name and your image and likeness in any Driver Photo of you, in connection with the operation, advertisement or promotion of the Services, without any compensation for, or obligation to pay, you. Such rights, consents and permissions will survive any termination or expiration of these Terms. Tailgate owns all right, title and interest in all Driver Photos and may use such Driver Photos in any manner in which it sees fit in connection with the Services.
Promotions. From time to time, we may elect to run or otherwise make available promotional offers, deals and/or codes through Services. We may establish and modify, in our sole discretion, the terms of such offer and suspend or end such offer at any point, with or without notice to you. We reserve the right, in our sole discretion, to reject or refuse to honor any special deal or promotional code you submit to, or otherwise attempt to redeem on, the Application or Services. Promotional codes are generally limited to one use per customer. We may post additional terms of a promotion on the Tailgate platform.
Cancellation of pickup. There are specific cancellation windows for any pickup and you will be charged if you fail to show and fail to cancel the reservation within the cancellation window. Please see the Pricing and Payment Terms for details on these cancellation periods and applicable fees. Tailgate reserves the right to charge you cancellation fees and/or no-show fees. Depending on the Rides booked and the circumstances of the cancellation or no-show, such fees range from a flat-fee to the full quoted fare. You hereby authorize any such charges and fees.
The provision of Transport involves a direct contractual relationship between a User and a Driver, and Users and Drivers agree that they will contract directly with one another for the provision of the transport of User cargo. You, acknowledge and agree that this contractual relationship is formed when a Driver agrees to provide the Service. In such instance, subject to the Driver’s and User’s right to cancel such Transport during the cancellation period, the User agrees to pay for and the Driver agrees to perform, the Service in accordance with the following terms and agreements: (1) these Terms, (2) the Pricing and Payment Terms (3) the transport Description, and (4) the transport Fees (collectively, a “Transport Contract”). You also agree with, and that each of your Transport Contracts will include, without limitation, the following terms: Upon the completion of the Service, User is responsible for and shall pay the applicable Fees [Pricing and Payment Terms]. Driver will not receive any payment until User pays the Ride Fees and User remains responsible for all applicable service Fees. User acknowledges that Tailgate does not, in any way, direct or control Driver’s provision of service delivery. User agrees to indemnify, hold harmless and defend Tailgate from any and all claims arising out of or related to their service Contract, including but not limited to claims arising out of the provision of services by Driver to any user. Tailgate offers a technology platform to provide the Services and is not involved in the provision of services. Tailgate’s sole responsibility with respect to service contracts is limited to (i) facilitating the availability of the Services, and (ii) serving as the limited authorized agent of the Drivers for the purpose of accepting payments from Users on behalf of the Drivers and transmitting such payments to the Drivers as described herein.
The provision of Transport involves a direct contractual relationship between a User and a Driver, and Users and Drivers agree that they will contract directly with one another for the provision of the transport of User cargo. You, acknowledge and agree that this contractual relationship is formed when a Driver agrees to provide the Service. In such instance, subject to the Driver’s and User’s right to cancel such Transport during the cancellation period, the User agrees to pay for and the Driver agrees to perform, the Service in accordance with the following terms and agreements: (1) these Terms, (2) the Pricing and Payment Terms (3) the transport Description, and (4) the transport Fees (collectively, a “Transport Contract”). You also agree with, and that each of your Transport Contracts will include, without limitation, the following terms:
Upon the completion of the Service, User is responsible for and shall pay the applicable Fees [Pricing and Payment Terms]. Driver will not receive any payment until User pays the Ride Fees and User remains responsible for all applicable service Fees.
User acknowledges that Tailgate does not, in any way, direct or control Driver’s provision of service delivery.
User agrees to indemnify, hold harmless and defend Tailgate from any and all claims arising out of or related to their service Contract, including but not limited to claims arising out of the provision of services by Driver to any user.
Tailgate offers a technology platform to provide the Services and is not involved in the provision of services. Tailgate’s sole responsibility with respect to service contracts is limited to (i) facilitating the availability of the Services, and (ii) serving as the limited authorized agent of the Drivers for the purpose of accepting payments from Users on behalf of the Drivers and transmitting such payments to the Drivers as described herein.