TERMS OF SERVICE
Effective Date: 9/27/2016
Welcome to Stowk. By using or accessing the Stowk website or mobile applications (collectively, the “Stowk System”), whether or not you register as a User, you agree to be bound by this Terms of Service Agreement (the “Agreement”) between you and Stowk, Inc. (“Stowk”). The Stowk System functions as a marketplace where vehicle owners (“Owners”) can locate and hire independent contractors (“Service Providers”) willing to deliver those vehicles to destinations of the Owners' choosing (the “Services”). Service Providers and Owners are collectively referred to herein as “Users” and each User shall create a User account that enables such User to access the Stowk System.
Stowk may modify, revise, or replace this Agreement at any time, effective upon posting the amended Agreement on the Stowk System. By continuing to access or use the Stowk System or Services after any such change, you agree to be bound by the new Agreement.
- ELIGIBILITY AND USE OF THE STOWK SYSTEM
(a) By using the Stowk System, the Services, or registering as a User, you agree that you:
i. are at least 18 years of age or older and may enter into legally binding contracts;
ii. will not submit any information to Stowk or other Users that is false, inaccurate, or misleading, or contains any omission of information;
iii. will keep all information submitted to Stowk or other Users updated and complete;
iv. will not violate any rule, law, statute, ordinance, regulation, or relevant contract;
v. will not use the Stowk System or the Services to harass, intimidate, or harm any other person;
vi. will not post commercial content on the Stowk System other than as permitted or circumvent any payment systems or requirements;
vii. will not impersonate any other person or entity or create an account on behalf of any person or entity other than yourself or a person or entity for which you have the permission to act as agent;
viii. will not misappropriate, distribute, or use any of the Intellectual Property (as defined below) or any derivatives thereof;
ix. will not circumvent any ban or suspension of your User account;
x. will not circumvent the security of the Stowk System or use it for any purpose other than as intended; and
xi. will not hack, reverse engineer; decode, decompile, crack, index, or deliberately harm the Stowk System.
(b) Further, if you are an Owner, you agree that you will:
i. not engage the Services for any vehicle that you do not own, lease, or have the right and authority to transport;
ii. not engage the Services for any vehicle that may not be delivered pursuant to the terms and conditions of an agreement with a third party, including, but not limited to, a lease agreement or insurance agreement;
iii. not engage the Services for any vehicle that is not safe to operate or transport; and
iv. not engage the Services for any vehicle unless it is in safe and roadworthy condition, in good mechanical condition, in full compliance with all applicable inspection registration requirements of the state in which the vehicle is registered, all safety devices in the vehicle are working and have not been disabled, and you have responded to any recall or similar safety notices applicable to your vehicle.
(c) Further, if you are a Service Provider, you agree that you:
i. possess a valid driver's license or commercial drivers license, if required;
ii. have not been convicted of any crime involving theft, fraud, or driving under the influence of alcohol or drugs;
iii. will maintain the insurance as required in this Agreement;
iv. will perform the Services as agreed upon by you and the Owner and will use your best care and best efforts to deliver the vehicle at the time estimated and in the same condition in which it was picked up; and
v. will not use any vehicle with which have been entrusted for the Services for any purpose other than completing the Services.
(d) You will be required to create a User account order to access the Stowk System. You agree to keep your username and password strictly confidential. You further agree to be responsible for all use of your User account.
(e) Stowk may perform a background check and/or research your motor vehicle and driving records. You hereby provide us with written instructions and authorization in accordance with the Fair Credit Reporting Act and any analogous federal or state laws to conduct a background check. These checks may consist of check of your motor vehicle records and a background check. Stowk may or may not conduct these checks in our sole discretion. You agree that these checks are necessary to create a community marketplace and to ensure trust amongst users and this was a material reason why you voluntarily registered to become a User.
(f) You acknowledge that, although Stowk may perform background checks on some Users, Stowk does not endorse or recommend any User. You agree to use the Stowk services solely at your own risk.
(g) Stowk reserves the right to review, accept, or reject any User at any time and for any reason. Stowk employs a selective Service Provider application provider and is under no obligation whatsoever to allow any person to become a Service Provider.
(h) This Agreement may be terminated by the User or Stowk at any time and without notice.
(i) YOU ACKNOWLEDGE THAT STOWK DOES NOT PROVIDE TRANSPORTATION SERVICES AND THAT STOWK IS NOT A TRANSPORTATION BROKER OR CARRIER. THE STOWK SYSTEM FUNCTIONS SOLELY AS A MARKETPLACE TO ENABLE USERS TO ARRANGE FOR THE SERVICES DESCRIBED HEREIN. ANY DECISION BY A USER TO OFFER OR ACCEPT SERVICES ONCE SUCH USER IS MATCHED THROUGH THE STOWK SYSTEM IS A DECISION MADE IN SUCH USER’S ABSOLUTE AND SOLE DISCRETION. SERVICE PROVIDERS AND OWNERS SHALL BE DEEMED TO HAVE ENTERED INTO SEPARATE AGREEMENTS WHEN THE SERVICES ARE PROVIDED.
- RELATIONSHIP OF PARTIES
(a) You and Stowk are independent contractors, and under no circumstance shall you be considered an employee, agent, partner, joint venturer or franchisee of Stowk. You agree to pay all applicable federal, state and local taxes based upon your provision of Services or any payments received by you from Stowk, its insurance company, or any other payments arising out of or relating to your use of the Stowk System or Services. As an independent contractor, you agree to promptly furnish Stowk with whatever information it may require to properly report payments to the Internal Revenue Service, including (without limitation) any information required to complete IRS Form 1099.
- CONSENT TO RECEIVE COMMUNICATIONS
(a) Stowk may send its Users messages via email, text (SMS) message, or telephone. You expressly agree to receive such messages and acknowledge that they may be information or promotional in nature. Standard data and messaging rates may apply. You may opt out of promotional messages by selecting the corresponding option in the Stowk System or by contacting Stowk. You may not be able to opt out of certain administrative messages without deleting your User account.
(b) Stowk may record phone calls made between you and Stowk and you consent to such recording.
(c) You acknowledge that by becoming a User you have electronically signed your name to accept this Agreement.
(a) As an Owner, you agree to pay the monthly subscription chare as described on the Stowk System at the time of signup. You agree to pay then then-current amount due each month through your payment information file. You may cancel your subscription at any time but you will not, under any circumstance, be refunded or credited for unused portions of your subscription.
i. Subscriptions may contain monthly vehicle shipping allowances. Subscription allowances will not roll over. No refunds or credits will be issued for unused vehicle shipping allowances.
(b) As a Service Provider, you agree to pay the amount per Service transaction as described on the Stowk System. Amounts due will be billed to your payment information on file. Services may not be provided unless you have a valid payment method on file. If your primary payment method fails or your account is past due, you authorize Stowk to charge all additional payment methods we have on file, and to employ all legal methods available to collect the amounts, including the engagements of collection agencies or legal counsel, which we may do in our sole discretion.
(c) Stowk uses a third party service known as Braintree to process payments. You agree to be bound by the applicable Braintree agreements (collectively, the “Braintree Services Agreement”). You agree to provide Stowk with complete and accurate information and you authorize Stowk to share such information with our third party payment processor.
(d) As an independent contractor, you are solely responsible for reporting and filing any taxes that may apply to your use or provision of the Services.
(e) Prices listed on the Stowk System are subject to change without notice. Stowk will under no circumstance be responsible for any typographical error found within the Stowk System.
- PROVISION OF SERVICES
(a) Owners may select Service Providers on the Stowk System for each Service by engaging the marketplace from the Stowk System dashboard.
(b) By agreeing to a Service Provider’s offer to perform Services, Owner agrees to pay the prices indicated and to allow the Service Provider to access, drive, operate, and transport Owner's vehicle. Service Provider shall have the discretion to choose a reasonable route to deliver the vehicle safely and in a timely manner but shall follow all terms and conditions of the accepted Service. Service Provider will not use the vehicle for any use other than to deliver the vehicle to its intended destination, unless otherwise expressly agreed upon by the Service Provider and the Owner. Service Providers will not drive passengers or engage in any commercial activity with the vehicle unless expressly permitted by the Owner.
(c) Service Provider agrees not to smoke in any vehicle and will keep each vehicle's interior clean and orderly.
(d) Owner agrees to indemnify, defend, and hold harmless Service Provider and Stowk from any claims or actions by any person or governmental agency that Service Provider was operating the Vehicle without Owner’s consent.
(e) Owner agrees to be solely responsible for any maintenance issues, routine wear and tear, or operating expenses that result during or after the delivery of the vehicle. In the event any maintenance or service must be completed during Service Provider's transportation of the vehicle, Owner agrees to be responsible and to pay the costs necessary to correct the issue and keep the vehicle safe to drive to the destination, unless the need for such maintenance or service was caused by the negligence or malfeasance of Service Provider, in which case Service Provider shall bear the cost. A delay caused by a breach of Sections 1(b)(iii)-(iv) shall excuse Service Provider from delivering the vehicle on time, provided that Service Provider use reasonable efforts to deliver the vehicle with reasonable speed taking into account necessary repairs.
(f) Service Provider agrees to be responsible for any damage caused during transportation of the vehicle unless such damage was solely due to a breach of Sections 1(b)(iii)-(iv) of this Agreement, in which case Owner will bear full responsibility.
(g) If Service Provider cancels any Service before picking up the applicable vehicle, Service Provider will be penalized with a 25% reduction on all future payments through the Stowk System. Additionally, cancellations may lead to termination of Service Provider's account.
(h) Any dispute between Owner and Service Provider involving the Services or this Section 5 of the Agreement shall be strictly between Owner and Service Provider and Stowk will in no way be responsible for any damages or for mediating any claim. The parties acknowledge that they are third party beneficiaries of Section 5 of this Agreement.
(i) Owners may be able to track vehicles in transit in real-time via the dashboard on their User account or via text messages. However, this tracking information may be unavailable, inaccurate, or delayed. Stowk will under no circumstance be responsible for the content, availability, or accuracy of such information and provides it (when available) as a courtesy only. You agree to rely on this information solely at your own risk.
- INSURANCE REQUIREMENTS
(a) Service Provider shall at all times have no less than $1,000,000.00 (USD) in liability insurance and $250,000.00 (USD) in cargo insurance. Service Provider shall ensure that its insurance policies cover losses related to the provision of the Services.
(b) Service Provider will provide Owner with proof of insurance prior to providing any Services. Owner acknowledges that Service Provider shall be solely responsible for providing insurance and Owner shall be solely responsible for confirming the adequacy and sufficiency of Service Provider's insurance.
- THIRD PARTY CONTENT
(a) Because Stowk provides a marketplace for third parties, all offers, opinions, advice, statements, services, contracts, or other information that may be found or displayed throughout the Stowk System are third party statements made by
Users. Under no circumstance will Stowk assume responsibility or any such third party information. You agree to evaluate and confirm the third party information, available through the Stowk System, whether posted or provided by third parties or by Stowk.
- INTELLECTUAL PROPERTY
(a) All content found on the Stowk System, including (but not limited to) graphics, logos, images, designs, sounds, information, and documents (the “Intellectual Property”), are protected by copyright, trademark, trade dress, trade secret, unfair competition and other laws and are owned by Stowk or its third party vendors. In no event shall any of the Intellectual Property or any derivatives thereof be copied, reproduced, distributed, displayed, downloaded , or transmitted in any form whatsoever without the express written permission of Stowk or the applicable third party vendor.
(b) "Stowk" and the Stowk logo are property of Stowk. Any rights not expressly granted herein are reserved.
(a) You agree to indemnify, defend, and hold harmless Stowk and its corporate parents, affiliates and subsidiaries, and its and their officers, directors, employees, and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with your access to or use of the Stowk System or Services or your violation of this Agreement; your user content; your interaction with any User, delivery of a vehicle, or creation of a listing for a vehicle; or the use, condition, or delivery of a vehicle by you, including but not limited to any death, injuries, losses, or damages (compensatory, direct, incidental, consequential, or otherwise) of any kind arising in connection with or as a result of the scheduling, delivery, or use of a vehicle.
(a) YOU AGREE TO USE THE STOWK SYSTEM AND THE SERVICES SOLELY AT YOUR OWN RISK. YOU AGREE THAT THE COMPANY SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM YOUR USE OF THE STOWK SYSTEM OR THE SERVICES, YOUR CONTRACTING WITH ANY SERVICE PROVIDER, OR ANY DAMAGE INCURRED TO YOUR VEHICLE OR PERSONAL PROPERTY. NOTWITHSTANDING THE PREVIOUS SENTENCE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE TOTAL LIABILITY OF THE COMPANY FOR ANY CLAIM UNDER THIS AGREEMENT, INCLUDING FOR ANY IMPLIED WARRANTIES, SHALL BE LIMITED TO THE AMOUNT OF MONEY YOU HAVE PAID TO STOWK OVER THE 12 MONTHS IMMEDIATELY PRECEDING ANY CLAIM.
(b) THE STOWK SYSTEM IS PROVIDED ON AN "AS IS," "AS AVAILABLE," AND "WITH ALL FAULTS" BASIS. STOWK MAKES NO REPRESENTATIONS, GUARANTIES OR WARRANTIES OF ANY KIND WITH RESPECT TO THE STOWK SYSTEM OR THE SERVICES INCLUDING (WITHOUT LIMITATION) ANY WARRANTIES OF MERCHANTABILITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, OR QUALITY. FURTHER, WE DO NOT REPRESENT OR WARRANT THAT (I) THE SERVICES WILL MEET YOUR SPECIFIC REQUIREMENTS, (II) THE STOWK SYSTEM WILL BE UNINTERRUPTED OR ERROR-FREE, OR (III) THE QUALITY OR ACCURACY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL AVAILABLE THROUGH THE STOWK SYSTEM OR STOWK WILL MEET YOUR EXPECTATIONS.
(c) WITHOUT LIMITING THE GENERALITY OF THE ABOVE, STOWK DOES NOT WARRANT THAT THE STOWK SYSTEM WILL BE COMPATIBLE WITH YOUR COMPUTER OR MOBILE DEVICE. YOU ACKNOWLEDGE AND AGREE THAT STOWK WILL NOT BE RESPONSIBLE FOR ANY LOSSES SUFFERED FROM COMPATABILITY ISSUES.
(a) This Agreement shall be governed by the laws of California without regard for the conflict of laws. You agree that any dispute arising hereunder, or related to the terms hereof, shall be brought exclusively in the state or federal courts sitting in California.
(b) This Agreement represents the complete and final understanding between you and Stowk with respect to the Services and the Stowk System, and supersedes all prior or contemporaneous communications and proposals, including previous versions of this Agreement.
(c) If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited the minimum extent necessary so that the remainder of this Agreement may be enforced to the maximum extent possible.
(d) The failure or delay of the parties to exercise any right under this Agreement shall not be deemed a waiver of such right.
(e) This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by the Stowk without restriction or notice.