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Phoenix Teknologies to terminate these Terms; (iv) arise out of, or relate to, Fares (as defined in this Agreement, including Phoenix Teknologies’s commission or fees on the Fares), tips, or average hourly guarantees owed by Phoenix Teknologies to Family Support Drivers/Team Drivers for Services, other than disputes relating to referral bonuses, other Phoenix Teknologies promotions, or consumer-type disputes, or (v) arise out of or relate to background checks performed in connection with a user seeking to become a Family Support Drivers/Team Driver (the subset of Claims in subsections (i)-(v) shall be collectively referred to as “Family Support Driver/Team Driver Claims”), Phoenix Teknologies shall pay all costs unique to arbitration (as compared to the costs of adjudicating the same claims before a court), including the regular and customary arbitration fees and expenses (to the extent not paid by Phoenix Teknologies pursuant to the fee provisions above). However, if you are the party initiating the Family Support Driver/Team Driver Claim, you shall be responsible for contributing up to an amount equal to the filing fee that would be paid to initiate the claim in the court of general jurisdiction in the state in which you provide Services to Passengers, unless a lower fee amount would be owed by you, applicable law, or subsection (e)(1) above. Any dispute as to whether a cost is unique to arbitration shall be resolved by the arbitrator. For purposes of this Section 16(e)(3), the term “Family Support Driver/Team Driver” shall be deemed to include both Family Support Drivers/Team Drivers and Family Support Drivers/Team Driver applicants who have not been approved to use the Platform.
D. Except as provided in Federal Rule of Civil Procedure 68 or any state equivalents, each party shall pay its own attorneys’ fees and pay any costs that are not unique to the arbitration (i.e., costs that each party would incur if the claim(s) were litigated in a court such as costs to subpoena witnesses and/or documents, take depositions and purchase deposition transcripts, copy documents, etc.).
E. At the end of any arbitration, the arbitrator may award reasonable fees and costs or any portion thereof to you if you prevail, to the extent authorized by applicable law.
F. Although under some laws Phoenix Teknologies may have a right to an award of attorneys’ fees and non-filing fee expenses if it prevails in an arbitration, Phoenix Teknologies agrees that it will not seek such an award unless you are represented by an attorney, or the arbitrator has determined that the claim is frivolous or brought for an improper purpose.
G. If the arbitrator issues you an award that is greater than the value of Phoenix Teknologies’s last written settlement offer made after you participated in good faith in the optional Negotiation process described in subsection (k) below, then Phoenix Teknologies will pay you the amount of the award or U.S. $1,000, whichever is greater.
17. Location and Manner of Arbitration. Unless you and Phoenix Teknologies agree otherwise, any arbitration hearings between Phoenix Teknologies and a Customer(s) (except Enterprise Customers) will take place in the county of your billing address, and any arbitration hearings between Phoenix Teknologies and a Family Support Driver/Team Driver will take place in the county in which the Family Support Driver/Team Driver provides Services. Unless you and Phoenix Teknologies agree otherwise, any arbitration hearings between Phoenix Teknologies and an Enterprise Customer will take place in Grand Rapids, Michigan.
g. Exceptions to Arbitration. This Arbitration Agreement shall not require arbitration of the following types of claims: (i) small claims actions brought on an individual basis that are within the scope of such small claims court’s jurisdiction; (ii) a representative action brought on behalf of others under PAGA or other private attorneys general acts, to the extent the representative PAGA Waiver in Section 16(c) of such action is deemed unenforceable by a court of competent jurisdiction under applicable law not preempted by the Federal Arbitration Act (“FAA”); (iii) claims for workers’ compensation, state disability insurance and unemployment insurance benefits; and (iv) claims that may not be subject to arbitration as a matter of generally applicable law not preempted by the FAA.
Nothing in this Arbitration Agreement prevents you from making a report to or filing a claim or charge with the Equal Employment Opportunity Commission, U.S. Department of Labor, Securities Exchange Commission, National Labor Relations Board (“NLRB”), or Office of Federal Contract Compliance Programs, or similar local, state or federal agency, and nothing in this Arbitration Agreement shall be deemed to preclude or excuse a party from bringing an administrative claim before any agency in order to fulfill the party’s obligation to exhaust administrative remedies before making a claim in arbitration. However, should you bring an administrative claim, you may only seek or recover money damages of any type pursuant to this Arbitration Provision, and you knowingly and voluntarily waive the right to seek or recover money damages of any type pursuant to any administrative complaint, except for a complaint issued by the NLRB. Should you participate in an NLRB proceeding, you may only recover money damages if such recovery does not arise from or relate to a claim previously adjudicated under this Arbitration Provision or settled by you. Similarly, you may not recover money damages under this Arbitration Provision if you have already adjudicated such claim with the NLRB. Nothing in this Agreement or Arbitration Agreement prevents your participation in an investigation by a government agency of any report, claim or charge otherwise covered by this Arbitration Provision.
h. Severability. In addition to the severability provisions in subsections (c) above, in the event that any portion of this Arbitration Agreement is deemed illegal or unenforceable under applicable law not preempted by the FAA, such provision shall be severed, and the remainder of the Arbitration Agreement shall be given full force and effect.
i. Team Driver/Family Support Driver Claims in Pending Settlement. If you are a member of a putative class in a class or representative action lawsuit against Phoenix Teknologies involving Team Driver/Family Support Driver Claims and a Motion for Preliminary Approval of a Settlement has been filed with the court in that lawsuit prior to this Agreement’s effective date (a “Pending Settlement Action”), then this Arbitration Agreement shall not apply to your Team Driver/Family Support Driver Claims in that particular class action. Instead, your Family Support Driver/Team Driver Claims in that Pending Settlement Action shall continue to be governed by the arbitration provisions contained in the applicable Agreement that you accepted prior to this Agreement’s effective date.
j. Opting Out of Arbitration. As a Family Support Driver/Team Driver or Family Support Driver/Team Driver applicant, you may opt out of the requirement to arbitrate Family Support Driver/Team Driver Claims defined in Section 16(e)(3) (except as limited by Section 16(i) above) pursuant to the terms of this subsection if you have not previously agreed to an arbitration provision in Phoenix Teknologies’s Terms where you had the opportunity to opt out of the requirement to arbitrate. If you have previously agreed to such an arbitration provision, you may opt out of any revisions to your prior arbitration agreement made by this provision in the manner specified below but opting out of this arbitration provision has no effect on any previous, other, or future arbitration agreements that you may have with Phoenix Teknologies. If you have not previously agreed to such an arbitration provision and do not wish to be subject to this Arbitration Agreement To opt out, you must notify Phoenix Teknologies in writing no later than 30 days after you accept these Terms and become subject to this Arbitration Agreement. Your notice must include your name and address, your Phoenix Teknologies Username (if any), the email address you used to set up your User account (if you have one), a CLEAR statement that you want to opt out of this Arbitration Agreement, and your handwritten signature. You must send notice of your desire to opt out of arbitration for such Family Support Driver/Team Driver Claims, which writing must be dated, signed and delivered by: (i) electronic mail to support@phoenix-teknologies.com, or (ii) by US Postal Service certified mail, return receipt requested to:
Legal and Policy Phoenix Teknologies, LLC, 7125 Headley St. SE #491, Ada, MI 49301-8777.
If you opt out of this Arbitration Agreement, all other provisions of the Terms will continue to apply to you. Opting out of this Arbitration Agreement will have no effect on any other prior arbitration agreements between you and Phoenix Teknologies or any future arbitration agreement between you and Phoenix Teknologies.
k. Optional Pre-Arbitration Negotiation Process. Before initiating any arbitration or proceeding, you and Phoenix Teknologies may agree to first attempt to negotiate any dispute, claim or controversy between the parties informally for 30 days, unless this time period is mutually extended by you and Phoenix Teknologies. A party who intends to seek negotiation under this subsection must first send to the other a written notice of the dispute (“Notice”). The Notice must (1) describe the nature and basis of the claim or dispute; and (2) set forth the specific relief sought. All offers, promises, conduct and statements, whether oral or written, made in the course of the negotiation by any of the parties, their agents, employees, and attorneys are confidential, privileged and inadmissible for any purpose, including as evidence of liability or for impeachment, in arbitration or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the negotiation.
17. General. Except as provided in Section 16, any enforcement of or dispute relating to these Terms shall be governed by the laws of the State of Michigan without regard to choice of law principles. This choice of law provision is only intended to specify the use of Michigan law to interpret these Terms and is not intended to create any other substantive right to non-Michiganns to assert claims under Michigan law whether by statute, common law, or otherwise. If any provision of these Terms is or becomes invalid or non-binding, the parties shall remain bound by all other provisions of these Terms. In that event, the parties shall replace the invalid or non-binding provision with provisions that are valid and binding and that have, to the greatest extent possible, a similar effect as the invalid or non-binding provision, given the contents and purpose of these Terms. You agree that these Terms and all incorporated policies and agreements may be automatically assigned by Phoenix Teknologies, in our sole discretion by providing notice to you. Except as explicitly stated otherwise, any notices to Phoenix Teknologies shall be given by certified mail, postage prepaid and return receipt requested to Phoenix Teknologies, LLC, 7125 Headley St. SE #491, Ada, MI. 49301-8777. Any notices to you shall be provided to you through the Phoenix Teknologies Platform or given to you via the email address or physical address you provide to Phoenix Teknologies when you create or update your account. 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. These Terms set forth the entire understanding and agreement between you and Phoenix Teknologies with respect to the subject matter hereof and supersede all previous understandings and agreements between the parties, whether oral or written.
If you have any questions regarding the Phoenix Teknologies Platform or Services, please contact our Customer Support Team through email at Support@Phoenix-Teknologies.com.
18. Family Support Driver/Team Driver Supplemental Terms. By using the Phoenix Teknologies Platform to provide Services as a Family Support Driver/Team Driver, you acknowledge, represent, warrant, and agree that:
a. You are an independent provider of transportation services. You use the Phoenix Teknologies Platform to advertise and connect with other Users who wish to arrange for your Services, and you provide Services to other Users of the Platform solely on behalf of yourself and your own independently established business, not on behalf of Phoenix Teknologies. The relationship between you and Phoenix Teknologies under these Terms is solely that of independent contracting parties. You and Phoenix Teknologies expressly agree that (i) this is not an employment agreement and does not create an employment relationship between you and Phoenix Teknologies, and (ii) no joint venture, franchisor- franchisee, partnership, or agency relationship is intended or created by these Terms. You have no authority to bind Phoenix Teknologies, and you undertake not to hold yourself out as an employee, agent, or authorized representative of Phoenix Teknologies.
b. Phoenix Teknologies does not, and shall not be deemed to, direct or control you generally or in your performance under these Terms 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 utilize the Phoenix Teknologies Platform. You retain the option to accept or to decline or ignore a Customer(s)’s request for Services via the Phoenix Teknologies Platform, or to cancel an accepted request for Services via the Phoenix Teknologies Platform, subject to Phoenix Teknologies’s then-current cancellation policies. You determine the rate for your Services when using the Phoenix Teknologies Platform by deciding when and how often to accept ride requests and which ride requests to accept.
c. With the exception of any signage required by law or permit/license rules or requirements, Phoenix Teknologies does not require you to: (i) display Phoenix Teknologies’s names, logos, or colors on your vehicle(s); or (ii) wear a uniform or any other clothing displaying Phoenix Teknologies’s names, logos, or colors. You acknowledge and agree that you have complete discretion to provide Services or otherwise engage in other business or employment activities.
d. You have a valid driver’s license and all other required licenses, certifications, permits, approvals, and authority to provide independent transportation services to third parties in all jurisdictions in which you operate as a Family Support Driver/Team Driver using the Phoenix Teknologies Platform. You must provide written copies of all required licenses, permits and other documentation necessary to establish your ability to operate as a Family Support Driver/Team Driver.
e. You have and can provide of proof of valid liability insurance consistent with all applicable legal requirements that names or schedules you for the operation of the vehicle you use to provide Services. Your insurance company must have the following:
Insurance requirements on a TNC driver, or a TNC on the TNC driver’s behalf, that meet or exceed the requirements: o The motor vehicle insurance is issued:
§ by an insurance company that holds a certificate of authority to do insurance business in Indiana under IC 27-1-3-20; or
§ through a surplus lines producer licensed under IC 27-1-15.8.
o The language of the motor vehicle insurance policy:
§ recognizes that the driver is a TNC driver or otherwise uses the personal vehicle to transport passengers for compensation; and
§ covers the driver while the driver is:
• logged on to the TNC’s digital network; or
• engaged in a prearranged ride.
o The motor vehicle insurance must meet the following coverage requirements while a TNC driver is logged on to the TNC’s digital network but is not engaged in a prearranged ride:
§ Primary motor vehicle liability insurance in an amount equal to at least:
• $50,000 per person for death and bodily injury;
• $100,000 per incident for death and bodily injury; and
• $25,000 per incident for property damage;
§ The insurance required above may be provided by any of the following:
• Motor vehicle insurance maintained by the TNC driver;
• Motor vehicle insurance maintained by the TNC; or
• Motor vehicle insurance maintained by any combination of the two.
o The motor vehicle insurance must meet the following coverage requirements while a TNC driver is engaged in a prearranged ride:
§ Primary motor vehicle liability insurance in an amount equal to at least $1 million per incident for death, bodily injury, and property damage.
f. 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 industry and all applicable statutory and state department of motor vehicle requirements for a vehicle of its kind.
g. You will only provide Services using the vehicle that has been reported to and approved by Phoenix Teknologies. You agree to update your account to reflect any change to your vehicle information and provide all requisite information for vehicle approval in advance of using the vehicle to provide Services.
h. You will not attempt to defraud Phoenix Teknologies, Users, or any other third-party on the Phoenix Teknologies Platform or in connection with your provision of Services. If we suspect that you have engaged in fraudulent activity, we may deactivate your account and/or withhold applicable payments for the ride(s) in question.
i. You agree that we may obtain information about your background on a continuous and ongoing basis, including criminal history and driving records, and you agree to provide any further necessary authorizations to facilitate our access to such records during the term of these Terms, consistent with applicable law or regulations. You agree to immediately self-report any arrest, conviction, or driving infraction.
j. By accepting a ride request, you are entering into an agreement with the Customer(s) to transport the Rider to a predetermined drop off location. You must transport a Rider directly to the predetermined drop-off location selected by the Customer(s).
k. You must be able to provide satisfactory verification of your identity to the Customer(s) or Enterprise Customer as the Family Support Driver/Team Driver that was matched with the Rider. Unless required by law, regulation, or ordinance, you are not required to wear a Phoenix Teknologies t-shirt or other Phoenix Teknologies-branded apparel, but such items are available to you through the Phoenix Teknologies store. Nothing in these Terms shall limit your right to display your own business name, logo or colors on your vehicle or your apparel. You may not misrepresent to the public that you are using the Phoenix Teknologies Platform to provide Services if you are not actually using the Platform at the time the Services are provided.
l. You must be able to communicate with Phoenix Teknologies, including its representatives and agents, and Customer(s)s and Rider to whom you provide Services.
m. You must comply with all state and federal laws, local ordinances and regulations that apply to the operation of a motor vehicle in the jurisdiction in which you provide Services. You will not engage in reckless behavior while driving, drive unsafely, operate a vehicle that is unsafe to drive, permit an unauthorized third-party to accompany you in the vehicle while providing Services, provide Services as a Family Support Driver/Team Driver while under the influence of alcohol or drugs, engage in illegal use of a mobile device, or take action that harms or threatens the safety of the Rider, Phoenix Teknologies community, or third-parties. More information regarding restricted activity can be found in the Zero Tolerance Policy.
n. You acknowledge and agree to abide by any applicable drug and alcohol testing policies. By agreeing to the Terms, you further acknowledge that you have received, reviewed, and agree to Phoenix Teknologies’s drug and alcohol testing policies, and voluntarily consent to the testing described therein.
o. You must have a current and always working cell phone number on your account.
p. You must install and use a car seat or booster as required by law. From time to time, you may receive requests from Customer(s)s to install car seat or boosters when not required by law. If you are not able to install a car seat or booster under either scenario, you will not be matched with the ride request.
q. During a ride, you must not interfere with the operation of the Application or disable the collection of location-based information from your mobile device.
r. You are responsible for maintaining any business licenses or certifications required by law, ordinance, or regulation.
s. You will make reasonable accommodation for Passengers and/or for service animals, as required by law.
t. By using the Platform to provide Services, you consent to and hereby authorizes Phoenix Teknologies (directly or through a service provider) to collect, use, store, and share certain driving and other location-based data while the Application is open or being used as set forth in the Terms.
u. You will pay all applicable federal, state, and local taxes based on your provision of Services and any payments received by you.
v. Defensive Driving Course Online (4-hour and 2-hour course) You must take either the 4 hour session or the 2 hour session.
Highly interactive course presents real-life driving situations, hazard recognition scenarios and defensive driving techniques to motivate drivers to change risky driving habits and behaviors to avoid collisions and traffic violations. The 4-hour and 2-hour courses features adaptive curriculum tailored to the participant’s profile, including age, gender, driving behaviors and attitudes, vehicle and geographic location based on a series of responses to questions asked throughout the course. Offered in English and Spanish.
19. Pricing and Payment Terms. Phoenix Teknologies does not pay Family Support Drivers/Team Drivers for Services that Family Support Drivers/Team Drivers provide while using the Phoenix Teknologies Platform. As a Customer(s), you understand that Family Support Drivers/Team Drivers provide Services directly to you and that your request or use of Family Support Driver/Team Driver Services may result in charges to you (“Charges”). Charges include all applicable fees, tolls, surcharges, and taxes as set forth in the Pricing and Payment Terms and your market’s pricing. You expressly authorize Phoenix Teknologies to charge the credit card or debit card associated with your account (“Payment Method”) for all applicable Charges. In addition to these Charges, you may elect to pay your Family Support Driver/Team Driver a tip. Phoenix Teknologies has the authority and reserves the right to determine and modify pricing by posting applicable pricing terms to your market’s pricing page or quoting you a price for a specific ride at the time you make a request. You are responsible for reviewing the applicable pricing terms and shall be responsible for all Charges incurred under your User account regardless of your awareness of such Charges.
If you are a Family Support Driver/Team Driver, you will receive payments from Customer(s) for your Services subject to the Pricing and Payment Terms. Phoenix Teknologies will collect payments owed to you by Customer(s) and other third parties as your limited collection agent and you agree that receipt of such payments by Phoenix Teknologies satisfies the payer’s obligation to you. Phoenix Teknologies reserves the right to adjust or withhold all or a portion of any Charges, including Ride Fees, or other payment owed to you (except tips) to satisfy any fees or other charges associated with your use of the Phoenix Teknologies Platform.
20. Promotions. From time to time, we may elect to run or otherwise make available promotional offers, deals and/or codes through the Platform. We may establish and modify, in our sole discretion, the terms of any such offer and suspend or end any 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 Platform. Promotional codes are generally limited to one use per customer/User.
21. Phoenix Teknologies Zero Tolerance Policy.
The Phoenix Teknologies Platform is designed with the interest of safety of all Users in mind. In that regard, Phoenix Teknologies maintains the following Zero Tolerance Policies. Family Support Drivers/Team drivers reported to have violated one or more Zero Tolerance Policies may be promptly suspended pending an investigation, and those found to have violated one or more of the Zero Tolerance policies will be deactivated in accordance with the law and Terms of Use.
- Impaired Driving, including the use, possession, or being under the influence of drugs or alcohol while using the Phoenix Teknologies Platform.
- Physical contact between a Phoenix Teknologies and a youth Rider is strictly prohibited, except in the case of an extraordinary safety reason where emergency assistance is required. In the case of an adult, limited physical assistance may be requested by the adult passenger.
- Illegal use of a mobile device while driving.
- Discrimination against any User based on race, color, national origin, religion, gender, gender identity, physical or mental disability, medical condition, marital status, age, sexual orientation or any other classification protected by state or federal law.
- Sexual harassment against any User including but not limited to, unwanted verbal or physical advances; leering, gestures, or displaying suggestive objects, pictures, cartoons, or posters; derogatory comments, epithets, slurs, or jokes; graphic comments or suggestive messages or invitation; and physical touching or assault, as well as impeding or blocking movements.
To make a complaint, please email us at caroline.wilbon@phoenix-teknologies.com. To the full extent possible, complaints will be handled in a confidential manner; an impartial, timely, and thorough investigation will be conducted; and resolution based on the investigation will be issued pursuant to the Terms of Use. No User will be retaliated against because of making a good faith complaint or participating in an investigation.
