Chowbus Driver Agreement

 

Last Updated: August 25, 2017

This Driver Agreement (“Agreement”) of Fantuan Group Inc. d/b/a Chowbus (“Chowbus”) is a part of and is hereby incorporated into the Chowbus Terms of Service (the “Terms”). Capitalized words used in this Agreement not defined herein will have the meanings given to them in the Terms. This Agreement governs the relationship between you as a driver (“Driver”) making food deliveries to customers who use the Services (each a “Customer”) and Chowbus.

 

  1. Payment.

    1. Commission to Driver. As a Driver, you will receive payment of a commission (the “Commission”) for your delivery of food orders to Customers (your services being referred to as “Delivery Services”). All Commissions to which you are entitled pursuant to this Agreement are subject to a Fee to be retained by Chowbus, discussed below. You will be entitled to retain all tips provided to you by Customers, and tips will not be subject to the Fee. Chowbus will process payment of all Commissions due to you through its third party payments processor. You acknowledge and agree that such amounts will not include any applicable third party processing fees and will be net of all amounts that Chowbus is required to withhold by law or legal process, if any.

    2. Fee to Chowbus. In exchange for permitting you to use the Driver portal to offer your Delivery Services, you agree to permit Chowbus to retain a fee based on each transaction in which you provide Delivery Services (the “Fee”). The amount of the applicable Fee will be communicated to you in a Fee schedule through the Driver portal. Chowbus reserves the right to prospectively change the Fee amount at any time in Chowbus’s discretion based upon, among other relevant criteria, local market factors, and Chowbus will provide you with notice in the event of such change. Continued use of the Services, and/or continued offering of Delivery Services after any such change in the Commission calculation will constitute your consent to such change.

    3. Pricing. You expressly authorize Chowbus to set the pricing for all charges (e.g., delivery charges) that apply to the Delivery Services. Chowbus reserves the right to change the pricing schedule at any time in its sole discretion based upon, among other relevant criteria, local market factors, and Chowbus will provide you with notice in the event of any such changes.

    4. Commission Adjustment. Chowbus reserves the right to withhold all or a portion of any Commission payment if Chowbus reasonably believes that (i) you have attempted to defraud or abuse Chowbus’s payment systems, (ii) such withholding is necessary to resolve a Customer complaint (e.g., you took too long to provide your Delivery Services).

  2. Driver Representations, Warranties, and Agreements. By providing Delivery Services, you represent, warrant, and agree that:

    1. At all times when you are performing the Delivery Services, you possess a valid driver’s license and are authorized and medically fit to operate a motor vehicle and have all appropriate licenses, approvals, and authority to provide Delivery Services in all jurisdictions in which you provide Delivery Services.

    2. You own, or have the legal right to operate, the vehicle you use when providing Delivery Services, and such vehicle is in good operating condition and meets all applicable statutory and state department of motor vehicle requirements (e.g., emissions levels) for a vehicle of its kind.

    3. You will not engage in reckless or otherwise unlawful behavior while driving, drive unsafely, operate a vehicle that is unsafe to drive, be intentionally involved in a motor vehicle accident or collision of any kind, permit an unauthorized third party to accompany you in the vehicle while providing Delivery Services, provide Delivery Services while under the influence of alcohol or drugs that are illegal under federal, state, or local law (or while impaired by prescription or over-the-counter drugs), or take action that harms or threatens to harm the safety of any person.

    4. You will perform the Delivery Services in compliance with all applicable local, state, and federal laws, ordinances, rules, regulations, and administrative orders.

    5. At all times when the you enter or are present on the premises of any Customer, restaurant, or other business partner of Chowbus, you will comply with all rules applicable to such premises for the safe, orderly and efficient conduct of operations.  While on any such premises, you will abide by all rules with respect to fire protection, security, safety, and the consumption of alcohol, drugs, and tobacco products that govern the employees who are employed to work on such premises.

    6. You will provide Delivery Services using only the vehicle that has been reported to, and approved by, Chowbus and for which a photograph has been provided to Chowbus;

    7. You will not make any misrepresentation regarding Chowbus, the Services, the Delivery Services, or your status as a Driver.

    8. You will not make any statement that is intended to or could be reasonably expected to disparage or reflect unfavorably on Chowbus, its business partners, the Services, the Delivery Services.  However, you are not prohibited from testifying truthfully in response to a lawful subpoena or court order or from providing truthful information to a government agency.

    9. You will not, while providing the Delivery Services, operate as a public carrier or taxi service, accept street hails, charge for rides, or use a credit card reader, such as a Square Reader, to accept payment or engage in any other activity in a manner that is inconsistent with your obligations under this Agreement.

    10. You will not use the name or logo of Chowbus for advertising or promotional purposes (including, without limitation, advertisements or press releases) nor will you grant press interviews, disseminate any information of a promotional nature or publish or provide for the publication of any information (including photographs) regarding this Agreement, the Services, or the Delivery Services, without the prior written consent of Chowbus.

    11. You will not attempt to defraud Chowbus or Customers in any manner, including in connection with your performance of Delivery Services. If Chowbus suspects that you have engaged in fraudulent activity, Chowbus may withhold Commissions that otherwise would have been payable to you hereunder.

    12. You agree that prior to and at any time during your engagement with Chowbus, Chowbus may obtain information about you, including your criminal and driving records, and you agree to provide all further authorizations and consents requested by Chowbus, or any third-party vendor utilized by Chowbus, to facilitate Chowbus’s access to such records.

    13. Your performance of the Delivery Services will constitute a breach of any agreement to which you are a party.  

    14. You have not used, nor will you use, in connection with your engagement hereunder, or disclose to Chowbus, or induce Chowbus to use, any confidential or proprietary information or material belonging to any third party.

    15. You have a valid policy of liability insurance (in coverage amounts consistent with all applicable legal requirements) that names or schedules you for the operation of the vehicle you use to provide Delivery Services.  You have a policy of Commercial Automobile Liability insurance with limits of not less than $1 million combined single limit, including all owned, non-owned, and hired motor vehicles used in connection with performance of the Delivery Services.  Such insurance will name Chowbus as an additional insured and will be primary and non-contributory in respect of any similar insurance available to Chowbus.

  3. Your Relationship with Chowbus.

    1. You acknowledge and agree that you have been engaged by Chowbus as an independent contractor. You acknowledge and understand that (i) this Agreement is not an employment agreement and does not create an employment relationship between you and Chowbus; and (ii) no joint venture, franchisor-franchisee, partnership, or agency relationship is intended or created by this Agreement. You have no authority to bind Chowbus, and you undertake not to hold yourself out as an employee, agent or authorized representative of Chowbus except as expressly set forth in this Agreement; and (iii) you will not be entitled to participate in any benefit plans or arrangements maintained by Chowbus, such as health insurance, dental insurance, retirement plan, profit sharing, bonus, or similar plans or programs, or any other fringe benefits which may from time to time be made available to employees of Chowbus; and (iv) you will be responsible for all expenses you incur in connection with your performance of the Delivery Services including, but not limited to, expenses associated with the maintenance of the vehicle you utilize in your performance of the Delivery Services, fuel for such vehicle, and any traffic citations you receive, and (v) Chowbus will not withhold taxes from the Commissions payable to you pursuant to this Agreement, and you will be solely responsible for paying any and all applicable federal, state and local taxes with respect to Commissions received by you.

    2. Chowbus does not, and will not be deemed to, direct or control you generally or in your performance under this Agreement specifically, including in connection with your performance of Delivery Services, your acts or omissions, or your operation and maintenance of the vehicle you operate in connection with your performance of the Delivery Services. You retain the sole right to determine when, where, and for how long you will utilize the Services or provide Delivery Services. With the exception of any signage required by law or permit/license rules or requirements, Chowbus will have no right to require you to: (i) display Chowbus’s names, logos or colors on any vehicle you operate in connection with your performance of the Delivery Services; or (ii) wear a uniform or any other clothing displaying Chowbus’s names, logos or colors. You acknowledge and agree that you have complete discretion regarding whether to provide Delivery Services and are free to otherwise engage in any other business activities.

  4. Indemnity. You will defend, indemnify, and hold Chowbus and its affiliates, subsidiaries, parents, successors and assigns, and each of their respective officers, directors, shareholders, members, managers, employees, attorneys, and agents (the “Indemnified Parties”), harmless from all claims, actions, suits, losses, costs, liabilities, and expenses (including reasonable attorneys’ fees and amounts paid in settlement or in satisfaction of any judgment) relating to or arising out of your breach of any covenant, representation or warranty you make under this Agreement, or your acts, omissions or intentional wrongdoing in connection with this Agreement, including, without limitation, any damage to or loss of use of property, injury to any persons, or fines or penalties (except where reimbursement of fines and penalties is prohibited by law), including: (a) your breach of this Agreement or the documents it incorporates by reference; (b) your violation of any law or the rights of a third party, including, without limitation, Customers, other motorists, and pedestrians, as a result of your own interaction with such third party; (c) your ownership, use, and operation of a motor vehicle or passenger vehicle, including your performance of Delivery Services; and/or (d) any other activities in connection with the Delivery Services. This indemnity will be applicable without regard to the negligence of any party, including any indemnified person.

  5. Confidentiality. You will not use any non-public technical, financial, strategic or other proprietary and confidential information relating to Chowbus’s business and  operations, including Customer information (“Confidential Information”) disclosed to you by Chowbus for your own use or for any purpose other than as contemplated herein. You will not disclose or permit disclosure of Confidential Information to third parties. You will take all reasonable measures to protect the secrecy of and avoid disclosure or use of Confidential Information in order to prevent it from falling into the hands of competitors or into the public domain. Notwithstanding the above, you will not have liability to Chowbus with regard to any Confidential Information which you can prove: was in the public domain at the time it was disclosed by Chowbus 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 Chowbus; becomes known to you, without restriction, from a source other than Chowbus without breach of any agreement between such source and Chowbus and otherwise not in violation of Chowbus’s rights. Further, you will not be in breach of this Agreement if you are compelled by law or legal process to disclose Confidential Information, provided that in each such event, you provide Chowbus with reasonably prompt written notice prior to any such disclosure so that Chowbus may obtain a protective order or other confidential treatment for the Confidential Information, and in the event that such a remedy is not obtained by Chowbus, you will furnish only that portion of Confidential Information which you are advised by written opinion of your legal counsel is legally required to be furnished.  Also, nothing in this Agreement prohibits you from providing truthful information to a government agency.  Finally, you will not be in breach of this Agreement if you (i) disclose Confidential Information to your own attorney in connection with any court proceeding brought by you against Chowbus alleging retaliation in respect of your reporting of a suspected violation of law, or (ii) use Confidential Information in such court proceeding, provided that all documents containing Confidential Information are filed under seal and are not disclosed except by court order.

  6. Term and Termination. This Agreement begins on the date this Agreement is accepted by Chowbus. Either party may terminate this Agreement upon written notice to the other.

  7. Entire Agreement; Relationship with the Terms. This Agreement, together with the Terms, constitutes the entire agreement between you and Chowbus with respect to its subject matters, and supersedes all other agreements, proposals, negotiations, representations or communications relating to its subject matters. You acknowledge that you have not been induced to enter this Agreement by any representations or promises not specifically stated in this Agreement. The protections of this Agreement will apply to any and all actions performed by you in preparation for and anticipation of the execution of this Agreement. Any change to this Agreement must be in writing and signed by duly authorized representatives of both you and Chowbus. To the extent of any conflict between this Agreement and the Terms, the provisions of this Agreement will apply.  Any waiver of any provision or condition of this Agreement will not be construed or deemed to be a waiver of any other provision or condition of this Agreement, nor a waiver of a subsequent breach of the same provision or condition, whether such breach is of the same or a different nature as the prior breach.

  8. Assignment; Subcontracting.  The interests, rights, powers, duties and liabilities of both you and Chowbus will be binding upon, and will inure to the benefit of, the respective successors and assigns of you and Chowbus.  Notwithstanding the foregoing, you will not assign or transfer your interest in this Agreement or assign or transfer any right or obligation you may have under this Agreement, or subcontract to others the Delivery Services or any part thereof.

  9. Certain Rules of Construction.  Section headings and titles used in this Agreement are for reference purposes only and will not be deemed to have any substantive effect.  

  10. Governing Law / Arbitration.  All disputes arising from this Agreement must be resolved pursuant to Section 2 of the Terms.