Zoomy General Terms of Service

1st October 2018

THIS FOLLOWING USER AGREEMENT DESCRIBES THE TERMS AND CONDITIONS ON WHICH ZOOMY LTD OFFERS YOU ACCESS TO THE ZOOMY PLATFORM.

These terms of service constitute a legally binding agreement (the "Agreement") between you ("you," or "your") and Zoomy, Ltd. ("Zoomy," "we," "us" or "our"), , governing your use of the Zoomy application, website, and technology platform (collectively, the "Zoomy Platform").

By entering into to this Agreement, and/or by using or accessing the Zoomy Platform you expressly acknowledge that you understand this and accept all of its terms. If you do not agree to be bound by the terms and conditions of this agreement, you may not use or access the Zoomy Platform.

The Zoomy Platform

The Zoomy Platform provides a marketplace where persons who seek transportation to certain destinations ("Passengers") can be matched with persons driving to or through those destinations ("Drivers"). Drivers and Passengers are collectively referred to herein as "Users" and each User shall create a User account that enables such User to access the Zoomy Platform. Each person may only create one User account, and Zoomy reserves the right to shut down any additional accounts. For purposes of this Agreement, the driving services provided by Drivers to Passengers that are matched through the Platform shall be referred to collectively as the "Services". Any decision by a User to offer or accept Services is a decision made in such User’s sole discretion. Each transportation Service provided by a Driver to a Rider shall constitute a separate agreement between such persons.

Modification to the Agreement

We reserve the right to modify the terms and conditions of this Agreement at any time, effective upon posting the amended terms on this site. If we make changes, we will notify you by, at a minimum, revising the "Last Updated" date at the top of this Agreement. You are responsible for regularly reviewing this Agreement. Continued use of the Zoomy Platform or Services after any such changes shall constitute your consent to such changes. If you do not agree to any such changes you may not use or access the Zoomy Platform or the Services.

Eligibility

The Zoomy Platform is available only to, and may only be used by individuals who can form legally binding contracts under applicable law. Without limiting the foregoing, the Zoomy Platform is not available to children (persons under the age of 18) or Users who have had their User account temporarily or permanently deactivated. By becoming a User, you represent and warrant that you are at least 18 years old and that you have the right, authority and capacity to enter into and abide by the terms and conditions of this Agreement.

Payments

As a Passenger, you agree that any amounts charged following a ride (a "Charge") are mandatory and due and payable immediately upon completion of the ride. Charges include Ride Fees and other applicable fees, tolls, surcharges, and taxes as set forth on www.zoomy.co.nz Zoomy has the authority and reserves the right to determine and modify pricing by posting applicable Charges to our website. Charges may vary based on the type of service you request. You are responsible for reviewing this page and shall be responsible for all Charges incurred under your User account regardless of your awareness of such Charges or the amounts thereof.

If payment for your ride fails, you will need to pay for any outstanding amounts before ordering again. This can be done through the app. Zoomy may also attempt to process this payment. Zoomy reserves the right to collect outstanding amounts from any payment method loaded on your account.

Ride Fees. Ride Fees consist of a base price and incremental charges based on the duration and distance of your ride. For particularly short rides, minimum Ride Fees may apply.

Cancellation Fee. In the event that you cancel a ride request on the Zoomy Platform more than 5 minutes after such request is made, make repeated or frequent cancellations, or fail to show up for your ride in a timely manner, you agree to pay a "Cancellation Fee". We may also assess a Cancellation Fee against you if we suspect that you have intentionally cancelled rides to disrupt the Zoomy Platform or the provision of Services.

As a Driver, you will receive applicable Ride Fees (net of Zoomy's Administrative Fee, as discussed below). You acknowledge and agree that such amounts shall not include any interest and will be net of any amounts that we are required to withhold by law. You expressly authorise Zoomy to set the prices on your behalf for all Charges that apply to the provision of Services. Zoomy reserves the right to withhold all or a portion of Ride Fees if it believes that you have attempted to defraud or abuse Zoomy or Zoomy's payment systems. In exchange for permitting you to offer your Services through the Zoomy Platform and marketplace as a Driver, you agree to pay Zoomy (and permit Zoomy to retain) a fee based on each transaction in which you provide Services (the "Commission Rate") The amount of the applicable Administrative Fee will be communicated to you in an the Zoomy Metered Rates, Charges and Policies, section of the Driver Application Form. Zoomy reserves the right to change the Commission Fee at any time in Zoomy's discretion based upon local market factors, and Zoomy will provide you with notice in the event of such change. Continued use of the Zoomy Platform after any such change in the Administrative Fee calculation shall constitute your consent to such change. Zoomy, at its sole discretion, may make available promotions with different features to any Drivers or prospective Drivers. These promotions, unless made to you, shall have no bearing whatsoever on your Agreement or relationship with Zoomy.

Zoomy Communications

By becoming a User, you expressly consent and agree to accept and receive communications from us, including via e-mail, text message, calls, and push notifications to the cellular telephone number you provided to us. By consenting to being contacted by Zoomy, you understand and agree that you may receive communications generated by automatic telephone dialing systems and/or which will deliver prerecorded messages sent by or on behalf of Zoomy, its affiliated companies and/or Drivers, including but not limited to: operational communications concerning your User account or use of the Zoomy Platform or Services, updates concerning new and existing features on the Zoomy Platform, communications concerning promotions run by us or our third party partners, and news concerning Zoomy and industry developments. IF YOU WISH TO OPT-OUT OF PROMOTIONAL EMAILS, TEXT MESSAGES, OR OTHER COMMUNICATIONS, YOU MAY OPT-OUT BY FOLLOWING THE UNSUBSCRIBE OPTIONS PROVIDED TO YOU. 

Your Information

Your Information is any information you provide, publish or post to or through the Zoomy Platform (including any profile information you provide) or send to other Users (including via in-application feedback, any email feature, or through any Zoomy-related Facebook, Twitter or other social media posting) (your "Information"). You consent to us using your Information to create a User account that will allow you to use the Zoomy Platform and participate in the Services. Our collection and use of personal information in connection with the Zoomy Platform and Services is as provided in Zoomy's Privacy Policy found here www.zoomy.co.nz/privacy You are solely responsible for your Information and your interactions with other members of the public, and we act only as a passive conduit for your online posting of your Information. You agree to provide and maintain accurate, current and complete information and that we and other members of the public may rely on your Information as accurate, current and complete. You warrant and represent to us that you are the sole author of your Information. To enable the Zoomy Platform to use your Information, you grant to us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sub-licensable (through multiple tiers) right and license to exercise the copyright, publicity, and database rights you have in your Information, and to use, copy, perform, display and distribute such Information to prepare derivative works, or incorporate into other works, such Information, in any media now known or not currently known. Zoomy does not assert any ownership over your Information; rather, as between us and you, subject to the rights granted to us in this Agreement, you retain full ownership of all of your Information and any intellectual property rights or other proprietary rights associated with your Information. You are the sole authorised user of your account. You are responsible for maintaining the confidentiality of any password provided by you or Zoomy for accessing the Zoomy Platform. You are solely and fully responsible for all activities that occur under your User account, and Zoomy expressly disclaims any liability arising from the unauthorised use of your User account. Should you suspect that any unauthorised party may be using your User account or you suspect any other breach of security, you agree to notify us immediately.

Restricted Activities

With respect to your use of the Zoomy Platform and your participation in the Services, you agree that you will not:

We reserve the right, but we have no obligation, to suspend or deactivate your User account if you do not comply with these prohibitions.

Driver Representations and Warranties

By providing Services as a Driver on the Zoomy Platform, you represent, warrant, and agree that:

Proprietary Rights and Trademark License

All intellectual property rights in the Zoomy Platform shall be owned by us absolutely and in their entirety. These rights include and are not limited to database rights, copyright, design rights (whether registered or unregistered), trademarks (whether registered or unregistered) and other similar rights wherever existing in the world together with the right to apply for protection of the same. All other trademarks, logos, service marks, company or product names set forth in the Zoomy Platform are the property of their respective owners. You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information ("Submissions") provided by you to us are non-confidential and shall become the sole property of Zoomy. Zoomy shall own exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you. ZOOMY, and other Zoomy logos, designs, graphics, icons, scripts and service names are registered trademarks, trademarks or trade dress of Zoomy in the New Zealand (collectively, the "Zoomy Marks"). If you provide Services as a Driver, Zoomy grants to you, during the term of this Agreement, and subject to your compliance with the terms and conditions of this Agreement, a limited, revocable, non-exclusive license to display and use the Zoomy Marks solely in connection with providing the Services through the Zoomy Platform ("License"). The License is non-transferable and non-assignable, and you shall not grant to any third party any right, permission, license or sublicense with respect to any of the rights granted hereunder without Zoomy's prior written permission, which it may withhold in its sole discretion. The Zoomy Marks may not be used in any manner that is likely to cause confusion. You acknowledge that Zoomy is the owner and licensor of the Zoomy Marks, and that your use of the Zoomy Marks will confer no additional interest in or ownership of the Zoomy Marks in you but rather inures to the benefit of Zoomy. You agree to use the Zoomy Marks strictly in accordance with Zoomy's Trademark Usage Guidelines, as may be provided to you and revised from time to time, and to immediately cease any use that Zoomy determines to nonconforming or otherwise unacceptable. You agree that you will not:

Violation of any provision of this License may result in immediate termination of the License, in Zoomy's sole discretion. If you create any materials bearing the Zoomy Marks (in violation of this Agreement or otherwise), you agree that upon their creation Zoomy exclusively owns all right, title and interest in and to such materials, including without limitation any modifications to the Zoomy Marks or derivative works based on the Zoomy Marks. You further agree to assign any interest or right you may have in such materials to Zoomy, and to provide information and execute any documents as reasonably requested by Zoomy to enable Zoomy to formalize such assignment.

Disclaimers

The following disclaimers are made on behalf of Zoomy, our affiliates, and each of our respective officers, directors, employees, agents, shareholders and suppliers.

The Zoomy Platform is provided on an "as is" basis and without any warranty or condition, express, implied or statutory. We do not guarantee and do not promise any specific results from use of the Zoomy Platform and/or the Services, including the ability to provide or receive Services at any given location or time.

We specifically disclaim any implied warranties of title, merchantability, fitness for a particular purpose and non-infringement. Some states do not allow the disclaimer of implied warranties, so the foregoing disclaimer may not apply to you. This warranty gives you specific legal rights and you may also have other legal rights that vary from state to state.

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

We have no control over the quality or safety of the transportation that occurs as a result of the Services. We cannot ensure that a Driver or Passenger will complete an arranged transportation service.

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

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

It is possible for others to obtain information about you that you provide, publish or post to or through the Zoomy Platform (including any profile information you provide), send to other Users, or share during the Services, and to use such information to harass or harm you. We are not responsible for the use of any personal information that you disclose to other Users on the Zoomy Platform or through the Services. Please carefully select the type of information that you post on the Zoomy Platform or through the Services or release to others. We disclaim all liability, regardless of the form of action, for the acts or omissions of other Users (including unauthorized users, or "hackers").

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

The Zoomy Platform contains (or you may be sent through the Zoomy Platform) links to other web sites owned and operated by third parties ("Third Party Sites"), as well as articles, photographs, text, graphics, pictures, designs, music, sound, video, information, applications, software and other content or items belonging to or originating from third parties ("Third Party Content"). Such Third Party Sites and Third Party Content are not investigated, monitored or checked for accuracy, appropriateness, or completeness by us, and we are not responsible for any Third Party Sites or Third Party Content accessed through the Zoomy Platform.

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

Indemnity

You will defend, indemnify, and hold us and our affiliates and each of our respective officers, directors, employees, agents, shareholders and suppliers harmless from any claims, actions, suits, losses, costs, liabilities and expenses (including reasonable attorneys' fees) relating to or arising out of your use of the Zoomy Platform and participation in the Services, including:

Limitation of Liability

IN NO EVENT WILL WE, OUR AFFILIATES, OR EACH OF OUR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SHAREHOLDERS OR SUPPLIERS, BE LIABLE TO YOU FOR ANY INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL, OR INDIRECT DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR DELETION, CORRUPTION, LOSS OF DATA, LOSS OF PROGRAMS, FAILURE TO STORE ANY INFORMATION OR OTHER CONTENT MAINTAINED OR TRANSMITTED BY THE ZOOMY PLATFORM, SERVICE INTERRUPTIONS, OR FOR THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES) ARISING OUT OF OR IN CONNECTION WITH THE ZOOMY PLATFORM, THE SERVICES, OR THIS AGREEMENT, HOWEVER ARISING INCLUDING NEGLIGENCE, EVEN IF WE OR OUR AGENTS OR REPRESENTATIVES KNOW OR HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES WE WILL NOT BE LIABLE FOR ANY DAMAGES, DIRECT, INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL AND/OR CONSEQUENTIAL (INCLUDING, BUT NOT LIMITED TO PHYSICAL DAMAGES, BODILY INJURY, DEATH AND/OR EMOTIONAL DISTRESS AND DISCOMFORT) ARISING OUT OF YOUR COMMUNICATING WITH OR MEETING OTHER USERS OF THE ZOOMY PLATFORM OR SERVICES, EVEN IF WE OR OUR AGENTS OR REPRESENTATIVES KNOW OR HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CERTAIN JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.

Release

In the event that you have a dispute with one or more Users, you agree to release Zoomy (including our affiliates and each of our respective officers, directors, employees, agents, shareholders, and suppliers) from claims, demands and damages 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 to your use of the Zoomy Platform or participation in the Services. We reserve the right, but have no obligation, to monitor disputes between you and other Users.

Term and Termination

This Agreement is effective upon your creation of a User account, as amended by any modifications made pursuant to Section 1. You may discontinue your use of the Zoomy Platform or participation in the Services at any time, for any reason. We may suspend or deactivate your User account (either as a Passenger and/or Driver), or revoke your permission to access the Zoomy Platform, at any time, for any reason, upon notice to you. We reserve the right to refuse access to the Zoomy Platform to any User for any reason not prohibited by law. Either party may terminate the Agreement for any reason upon written notice to the other party. Sections 1, 4 (with respect to the license), 6-11 and 13-21 shall survive any termination or expiration of this Agreement.

Agreement to Arbitrate All Disputes and Legal Claims

You and We agree that any legal disputes or claims arising out of or related to the Agreement (including but not limited to the use of the Zoomy Platform and/or the Services, or the interpretation, enforceability, revocability, or validity of the Agreement, or the arbitrability of any dispute), that cannot be resolved informally shall be submitted to binding arbitration.. Any judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Claims shall be brought within the time required by applicable law. You and we agree that any claim, action or proceeding arising out of or related to the Agreement must be brought in your individual capacity, and not as a plaintiff or class member in any purported class, collective, or representative proceeding. The arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative, collective, or class proceeding.

Confidentiality

You agree not to use any technical, financial, strategic and other proprietary and confidential information relating to Zoomy's business, operations and properties, including User information ("Confidential Information") disclosed to you by Zoomy for your own use or for any purpose other than as contemplated herein. You shall not disclose or permit disclosure of any Confidential Information to third parties. You agree to take all reasonable measures to protect the secrecy of and avoid disclosure or use of Confidential Information of Zoomy in order to prevent it from falling into the public domain. Notwithstanding the above, you shall not have liability to Zoomy with regard to any Confidential Information which you can prove: was in the public domain at the time it was disclosed by Zoomy or has entered the public domain through no fault of yours; was known to you, without restriction, at the time of disclosure, as demonstrated by files in existence at the time of disclosure; is disclosed with the prior written approval of Zoomy; becomes known to you, without restriction, from a source other than Zoomy without breach of this Agreement by you and otherwise not in violation of Zoomy's rights; or is disclosed pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided, however, that You shall provide prompt notice of such court order or requirement to Zoomy to enable Zoomy to seek a protective order or otherwise prevent or restrict such disclosure.

No Agency

You and Zoomy are independent contractors, and no agency, partnership, joint venture, employee-employer or franchisor-franchisee relationship is intended or created by this Agreement. Notices, Complaints Except as explicitly stated otherwise, any notices to Zoomy shall be given by certified mail, postage prepaid and return receipt requested to: Level 1, 54 Ponsonby Road, Ponsonby, Auckland Such notice shall be deemed given three days after the date of mailing. Any notices to you shall be provided to you through the Zoomy Platform or given to you via the email address you provide to Zoomy during the registration process, and such notice shall be deemed given immediately upon sending. Alternatively, we may give you notice by certified mail, postage prepaid and return receipt requested, to the address provided to Zoomy during the registration process. In such case, notice shall be deemed given 3 days after the date of mailing. To resolve a complaint regarding the Zoomy Platform, you should first contact our Customer Service Department through our support centre at www.zoomy.co.nz

General

This Agreement shall be governed by the laws of New Zealand without regard to choice of law principles. If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced. You agree that this Agreement and all incorporated agreements may be automatically assigned by Zoomy, in our sole discretion in accordance with the "Notices" section of this Agreement. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. A party's failure to act with respect to a breach by the other party does not constitute a waiver of the party's right to act with respect to subsequent or similar breaches. This Agreement sets forth the entire understanding and agreement between you and Zoomy with respect to the subject matter hereof.

Relationship with Zoomy

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

Zoomy does not, and shall not be deemed to, direct or control you generally or in your performance under this Agreement specifically, including in connection with your provision of Services, your acts or omissions, or your operation and maintenance of your vehicle. You retain the sole right to determine when, where, and for how long you will utilise the Zoomy Platform. You retain the option to accept or to decline or ignore a Passengers’ request for Services via the Zoomy Platform, or to cancel an accepted request for Services via the Zoomy Platform, subject to Zoomy’s then-current cancellation policies. These are regularly emailed to Drivers and are also available on request. You acknowledge and agree that you have complete discretion to provide Services or otherwise engage in other business or employment activities.