Bounce Dispute Resolution and Arbitration Agreement
THE FOLLOWING USER DISPUTE RESOLUTION AGREEMENT DESCRIBES THE ADDITIONAL TERMS AND CONDITIONS TO BE READ ALONG WITH THE TERMS OF SERVICE ON WHICH ALTRUSITIC INC. OFFERS YOU ACCESS TO THE BOUNCE PLATFORM.
1. General
2. Modification to the Agreement
3. Dispute Resolution and Arbitration Agreement: IMPORTANT NOTICE – READ IMMEDIATELY
(a) Mandatory Pre-Arbitration Negotiation Process
(b) Agreement to Arbitration Between You and Bounce
(c) Prohibition of Class Actions and Non-Individualized Relief
(d) Representative PAGA Waiver
(e) Rules Governing the Arbitration
(f) Arbitration Fees and Awards
(g) Location and Manner of Arbitration
(h) Exceptions to Arbitration
(i) Severability
4. Choice of Law/ Choice of Venue/ Forum Selection: IMPORTANT NOTICE—READ IMMEDIATELY
5. Notices, Complaints
6. Contacting Bounce
1. General
This Dispute Resolution Agreement constitutes a legally binding agreement (the “Agreement”) between you (“you,” or “your”) and Altruistic, Inc. doing business as Bounce (“Altruistic,” “Bounce” “we,” “us” or “our”), a Delaware corporation, governing your use of the Bounce application, website, and technology platform (collectively, the “Bounce Platform”).
The Bounce Platform provides a marketplace where persons who seek transportation to certain destinations (“Riders”) can be matched with persons driving to or through those destinations (“Drivers”). Drivers and Riders are collectively referred to herein as “Users” and each User shall create a User account that enables such User to access the Bounce Platform. For purposes of this Agreement, the driving services provided by Drivers to Riders that are matched through the Platform shall be referred to collectively as the “Services”.
BOUNCE DOES NOT PROVIDE TRANSPORTATION SERVICES, AND BOUNCE IS NOT A TRANSPORTATION CARRIER. IT IS UP TO THE DRIVER TO DECIDE WHETHER OR NOT TO OFFER A RIDE TO A RIDER CONTACTED THROUGH THE BOUNCE PLATFORM, AND IT IS UP TO THE RIDER TO DECIDE WHETHER OR NOT TO ACCEPT A RIDE FROM ANY DRIVER CONTACTED THROUGH THE BOUNCE PLATFORM. ANY DECISION BY A USER TO OFFER OR ACCEPT SERVICES ONCE SUCH USER IS MATCHED THROUGH THE BOUNCE PLATFORM IS A DECISION MADE IN SUCH USER’S SOLE DISCRETION. EACH RIDE PROVIDED BY A DRIVER TO A RIDER SHALL CONSTITUTE A SEPARATE AGREEMENT BETWEEN SUCH PERSONS.
By creating your User account and using the Bounce Platform, you expressly acknowledge that you understand this Agreement and accept all of its terms. Additionally, if you accept a stock option grant under the Stock Option Agreement as either a partner or staff, you expressly acknowledge that you understand this Agreement 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 BOUNCE PLATFORM OR THE SERVICES OR ACCEPT ANY STOCK OPTION GRANT
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 Bounce, 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 Bounce with respect to the subject matter hereof.
2. 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 revising the “Last Updated” date at the top of this Agreement. You are responsible for regularly reviewing this Agreement. Continued use of the Bounce 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 Bounce Platform or the Services
3. Dispute Resolution and Arbitration Agreement: IMPORTANT NOTICE – READ IMMEDIATELY
(a) Mandatory Pre-Litigation Negotiation Process
Before initiating any arbitration, litigation, or other proceeding, you and Bounce agree to first attempt to negotiate any dispute, claim or controversy between the parties informally for 45 days, unless this time period is mutually extended by you and Bounce. A party seeking negotiation under this subsection must first send to the other a written notice of the dispute (“Notice”) via certified mail. If you have not provided Bounce with a mailing address, you agree to accept Notice via e-mail or text via the email address or mobile phone number you have provided. Notice to Bounce shall be sent to:
Altruistic, Inc.
9845 Erma Road, Suite 300
San Diego, CA 92131
The Notice must (1) describe the nature and basis of the claim or dispute; and (2) set forth the specific relief sought.
THE NEGOTIATION PROCESS SHALL BE MANDATORY FOR ALL NEW CLAIMS, regardless of whether arbitration and/or litigation between you and Bounce has already begun on different and/or related claims. Only claims that have gone through the full Mandatory Pre-Litigation Negotiation Process can be litigated. You and Bounce agree that it is important to try to avoid litigation and that the Mandatory Pre-Litigation Negotiation Process is a material term and that any party seeking to bring litigate terms that have not gone through the Mandatory Pre-Litigation Negotiation Process shall be dismissed with prejudice and the prevailing party shall be entitled to attorney fees and costs. This Mandatory Pre-Litigation Negotiation Process shall not extend any Statute of L imitations. A party needs to start the Mandatory Pre-Litigation Process with enough time to file an Arbitration or Court action within the applicable statute of limitations or be forever time barred from pursuing such claims.
At the close of the Negotiation Process, if the dispute is not resolved, THE DEFENDANT SHALL HAVE THE SOLE DISCRETION BETWEEN ARBITRATION AND/OR COURT LITIGATION FOR EACH CLAIM AND/OR DISPUTE. Defendant reserves the right to elect to arbitrate some claims and litigate in court others. If new claims arise during arbitration and/or litigation, the defendant shall have the sole discretion between arbitration and/or litigation in court for those new claims, regardless of whether existing claims are presently or have been previously resolved via arbitration and/or litigation.
In the event the Mandatory Pre-Arbitration Negotiation Process is deemed invalid or unenforceable, then the remaining portions of the Dispute Resolution and Arbitration Agreement will remain in force.
(b) Agreement to Arbitration Between You and Bounce: IMPORTANT NOTICE – READ IMMEDIATELY
YOU AND BOUNCE MUTUALLY AGREE THAT AT THE OPTION OF THE DEFENDANT YOU AND WE WILL WAIVE OUR RESPECTIVE RIGHTS TO RESOLUTION OF DISPUTES IN A COURT OF LAW BY A JUDGE OR JURY AND AGREE TO RESOLVE ANY DISPUTE BY ARBITRATION, as set forth below.
Arbitration shall be conducted in accordance with the Commercial Arbitration Rules (the “Rules”) of the American Arbitration Association (“AAA”) in effect at time the arbitration claim is filed. This agreement to arbitrate (“Arbitration Agreement”) is governed by the Federal Arbitration Act and survives after the Agreement terminates or your relationship with Bounce ends. ANY ARBITRATION UNDER THIS AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED. Except as expressly provided below, this Arbitration Agreement applies to all Claims (defined below) between you and Altruistic, including our affiliates, subsidiaries, parents, successors and assigns, and each of our respective officers, directors, employees, agents, or shareholders.
Claims include, but are not limited to, any dispute, claim or controversy, whether based on past, present, or future events, arising out of or relating to: this Agreement and prior versions thereof (including the breach, termination, enforcement, interpretation or validity thereof), the Stock Option Agreement thereof (including the breach, termination, enforcement, interpretation or validity thereof), the Bounce Platform, the Services, any other goods or services made available through the Bounce Platform, your relationship with Bounce, the threatened or actual suspension, deactivation or termination of your User Account or this Agreement, payments made by you or any payments made or allegedly owed to you, any promotions or offers made by Bounce, any city, county, state or federal wage-hour law, trade secrets, unfair competition, compensation, breaks and rest periods, expense reimbursement, wrongful termination, discrimination, harassment, retaliation, fraud, defamation, emotional distress, breach of any express or implied contract or covenant, misclassification, claims arising under federal or state consumer protection laws; claims arising under antitrust laws, claims arising under the Telephone Consumer Protection Act and Fair Credit Reporting Act; and claims arising under the Uniform Trade Secrets Act, Civil Rights Act of 1964, Americans With Disabilities Act, Age Discrimination in Employment Act, Older Workers Benefit Protection Act, Family Medical Leave Act, Fair Labor Standards Act, Employee Retirement Income Security Act (except for individual claims for employee benefits under any benefit plan sponsored by Bounce and covered by the Employee Retirement Income Security Act of 1974 or funded by insurance), and state statutes, if any, addressing the same or similar subject matters, and all other federal and state statutory and common law claims. All disputes concerning the arbitrability of a Claim (including disputes about the scope, applicability, enforceability, revocability or validity of the Arbitration Agreement) shall be decided by the arbitrator, except as expressly provided below.
BY AGREEING TO THIS ARBITRATION AGREEMENT, YOU UNDERSTAND THAT THE CHOICE BETWEEN ARBITRATION OR COURT LITIGATION WILL BE AT THE SOLE DISCRETION OF THE DEFENDANT. SHOULD THE DEFENDANT ELECT ARBITRATION OF A CLAIM, YOU UNDERSTAND THAT YOU AND BOUNCE ARE WAIVING THE RIGHT TO SUE IN COURT OR HAVE A JURY TRIAL FOR THAT CLAIM AND THAT CLAIM ONLY.
In the event that the requirement to arbitrate Disputes contained in this section is deemed invalid or unenforceable, then the prohibition on disputes, claims or controversies brought by a plaintiff or class member in any purported class or representative proceeding described below shall apply in any other proceeding and the consolidation of more than one person’s disputes, claims or controversies shall be prohibited.
(c) Prohibition of Class Actions and Non-Individualized Relief
YOU UNDERSTAND AND AGREE THAT YOU AND BOUNCE MAY EACH BRING CLAIMS IN ARBITRATION AND/OR COURT LITIGATION AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY AND NOT ON A CLASS, COLLECTIVE ACTION, OR REPRESENTATIVE BASIS (“CLASS ACTION WAIVER”). YOU UNDERSTAND AND AGREE THAT YOU AND BOUNCE BOTH ARE WAIVING THE RIGHT TO PURSUE OR HAVE A DISPUTE RESOLVED AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, COLLECTIVE OR REPRESENTATIVE PROCEEDING. The AAA and/or Court shall not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. NOTWITHSTANDING THE FOREGOING, THIS SUBSECTION (B) SHALL NOT APPLY TO REPRESENTATIVE PRIVATE ATTORNEYS GENERAL ACT CLAIMS BROUGHT AGAINST BOUNCE, WHICH ARE ADDRESSED SEPARATELY BELOW.
The arbitrator shall have no authority to consider or resolve any Claim or issue any relief on any basis other than an individual basis. The arbitrator shall have no authority to consider or resolve any Claim or issue any relief on a class, collective, or representative basis.
Notwithstanding any other provision of this Agreement, the Arbitration Agreement or the AAA Rules, DISPUTES REGARDING THE SCOPE, APPLICABILITY, ENFORCEABILITY, REVOCABILITY OR VALIDITY OF THE CLASS ACTION WAIVER MUST BE RESOLVED BY A CIVIL COURT OF COMPETENT JURISDICTION. In any case in which: (1) the dispute is filed as a class, collective, or representative action and (2) there is a final judicial determination that the Class Action Waiver is unenforceable as to any Claims, the class, collective, and/or representative action on such Claims must be litigated in a civil court of competent jurisdiction, but the Class Action Waiver shall be enforced in arbitration on an individual basis as to all other Claims to the fullest extent possible.
In the event the prohibition on class arbitration is deemed invalid or unenforceable, then the remaining portions of the Dispute Resolution and Arbitration Agreement will remain in force.
(d) Representative PAGA Waiver
Notwithstanding any other provision of this Agreement or the Arbitration Agreement, to the fullest extent permitted by law: (1) you and Bounce agree not to bring a representative action on behalf of others under the Private Attorneys General Act of 2004 (“PAGA”), California Labor Code § 2698 et seq., in any court or in arbitration, and (2) for any claim brought on a private attorney general basis, including under the California PAGA, both you and Bounce agree that any such dispute shall be resolved in arbitration on an individual basis only (i.e., to resolve whether you have personally been aggrieved or subject to any violations of law), and that such an action may not be used to resolve the claims or rights of other individuals in a single or collective proceeding (i.e., to resolve whether other individuals have been aggrieved or subject to any violations of law) (collectively, “representative PAGA Waiver”). Notwithstanding any other provision of this Agreement, the Arbitration Agreement or the AAA Rules, disputes regarding the scope, applicability, enforceability, revocability or validity of this representative PAGA Waiver may be resolved by a civil court of competent jurisdiction. If any provision of this representative PAGA Waiver is found to be unenforceable or unlawful for any reason: (i) the unenforceable provision shall be severed from this Agreement; and (ii) severance of the unenforceable provision shall have no impact whatsoever on the Arbitration Agreement or the requirement that any remaining Claims be arbitrated on an individual basis pursuant to the Arbitration Agreement. To the extent that there are any Claims to be litigated in a civil court of competent jurisdiction because a civil court of competent jurisdiction determines that the representative PAGA Waiver is unenforceable with respect to those Claims, the Parties agree that litigation of those Claims shall be stayed pending the outcome of any individual Claims in arbitration.
(e) Rules Governing the Arbitration
If Defendant/ Respondent elects to resolve any claim via arbitration, any arbitration conducted pursuant to this Arbitration Agreement shall be administered by the American Arbitration Association (“AAA”)pursuant to the Arbitration Rules that are in effect at the time the arbitration is initiated, as modified by the terms set forth in this Agreement. Copies of these rules can be obtained at the AAA’s website (www.adr.org) (the “AAA Rules”) or by calling the AAA at 1-800-778-7879.
As part of the arbitration, both you and Bounce will have the opportunity for reasonable discovery of non-privileged information that is relevant to the Claim. The arbitrator may award any individualized remedies that would be available in court. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claims. The arbitrator will provide a reasoned written statement of the arbitrator’s decision which shall explain the award given and the findings and conclusions on which the decision is based.
The arbitrator will decide the substance of all claims in accordance with applicable law, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different Users, but is bound by rulings in prior arbitrations involving the same User to the extent required by applicable law. The arbitrator’s award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof, provided that any award may be challenged in a court of competent jurisdiction.
(f) Arbitration Fees and Awards
The payment of filing and arbitration fees will be governed by the relevant AAA Rules subject to the following modifications:
1. If a party fails to participate in good faith in the Mandatory Negotiation Process described in subsection (a) above prior to initiating arbitration under this Arbitration Agreement, that Party agrees to pay all AAA filing and arbitration fees, except where limited by law.
2. Where the Mandatory Negotiation Process is satisfied but the dispute is not resolved and the Defendant elects Arbitration, with respect to any Claims brought by Bounce against a Partner, or for Claims brought by a Partner against Bounce that: (A) are based on an alleged employment relationship between Bounce and a Partner; (B) arise out of, or relate to, Bounce’s actual deactivation of a Partner’s User account or a threat by Bounce to deactivate a Partner’s User account; (C) arise out of, or relate to, Bounce’s actual termination of a Partner’s Agreement with Bounce under the termination provisions of this Agreement, or a threat by Bounce to terminate a Partner’s Agreement; or (D) arise out of, or relate to, Fares (as defined in the Terms of Services, including Bounce’s commission on the Fares), tips, or average hourly guarantees owed by Bounce to Drivers for Services, other than disputes relating to referral bonuses, other Bounce promotions, or consumer-type disputes (the subset of Claims in subsections (A)-(D) shall be collectively referred to as “Partner Claims”), Bounce 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 Bounce pursuant to the fee provisions above). However, if you are the party initiating the Partner 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, unless a lower fee amount would be owed by you pursuant to the AAA Rules or applicable law. Any dispute as to whether a cost is unique to arbitration shall be resolved by the arbitrator.
3. Except as provided in Federal Rule of Civil Procedure 68 or 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.).
4. At the end of any arbitration, the arbitrator may award reasonable fees and costs or any portion thereof to the prevailing party only to the extent required by applicable law.
5. If the arbitrator issues the prevailing party an award that is less than the value of a written offer from the other party, the prevailing party’s recovery shall be offset by the full cost of arbitration and the other party’s attorney fees.
(g) Location and Manner of Arbitration
Unless you and Bounce agree or applicable law requires otherwise, any arbitration hearings between You and Bounce will take place in San Diego County, California. If your Claim is for $10,000 or less, Bounce agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as determined by the AAA Rules. If your Claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules.
(h) Exceptions to Arbitration
This Arbitration Agreement shall not require arbitration of the following types of claims: (1) claims that Defendant has elected to resolve via court litigation; (2) small claims actions brought on an individual basis that are within the scope of California small claims court’s jurisdiction; (3) claims for workers’ compensation, state disability insurance and unemployment insurance benefits; and (4) claims that may not be subject to arbitration as a matter of law. 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, 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 you knowingly and voluntarily waive the right to seek or recover money damages of any type pursuant to any administrative complaint and instead may seek such relief only through arbitration under this Agreement. 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.
(i) Severability
In addition to the severability provisions in the subsections above, in the event that any portion of this Arbitration Agreement is deemed illegal or unenforceable, such provision shall be severed and the remainder of the Arbitration Agreement shall be given full force and effect.
4. Choice of Law/ Choice of Venue/ Forum Selection: IMPORTANT NOTICE—READ IMMEDIATELY
This Agreement shall be governed by the laws of the State of Delaware without regard to choice of law principles. Where Defendant has elected to resolve any claim or dispute via litigation and not arbitration, jurisdiction and venue over any and all disputes arising out of this agreement shall be proper only and exclusively in the federal or state courts in San Diego County, California.
5. Notices, Complaints
Except as explicitly stated otherwise, any notices to Bounce shall be given by certified mail, postage prepaid and return receipt requested to:
Altruistic, Inc.
9845 Erma Road, Suite 300
San Diego, CA 92131
Such notice shall be deemed given 5 days after the date of mailing. Any notices to you shall be provided to you through the Bounce Platform or via email or text to the email address or mobile phone number you provide to Bounce 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 Bounce during the registration process. In such case, notice shall be deemed given 5 days after the date of mailing.
To resolve a complaint regarding the Bounce Platform, you should first contact our Customer Service Department through our support center at Customerservice@JoinBounce.com
6. Contacting Bounce
If you have any questions about this Dispute Resolution Statement, the practices of Bounce, or Your dealings with Bounce, You may contact us at Customerservice@JoinBounce.com.
Copyright © 2017 Altruistic Inc.