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Terms of Use and End User License Agreement

 

Last Updated: October 21, 2014

 

1. Legal Agreement.  Hitch Crowdsourced Delivery is a digital marketplace designed to enable people who seek to have a package delivered to certain destinations (referred to herein as “Shippers”) to contact and arrange delivery by people driving to or through those destinations (referred to herein as “Travelers”)(Shippers and Travelers are referred to in this Agreement collectively as “users”).  This terms of use and end use license agreement (referred to herein as the "Agreement") describes the terms and conditions that govern the use of Hitch’s digital marketplace (referred to herein as the "Service") by its users.  This Agreement is a legally binding contract between you (referred to herein as “you”), as a user of the Service, and Caluzo, Inc., a Florida corporation d/b/a Hitchit or Hitch Crowdsourced Delivery (referred to herein as the "Company", “we”, or “us”), the owner of Hitch Crowdsourced Delivery and the provider of the Hitch Crowdsourced Delivery service (hereinafter referred to as “Hitch” or the “Hitch Service”).  Please read this Agreement carefully before using the Service.  By using or receiving the Service or downloading, installing or using any application supplied by us to enable you to use the Service and said associated application (the “Application”), you agree to the terms and conditions set forth in this Agreement.

 

2. Amendments.  We may modify or amend the terms of this Agreement or any of our policies relating to the Service or Application at any time.  Any such modifications or amendments will be effective upon posting of an updated version of this Agreement on our website.  You are responsible for reviewing this website for any changes to this Agreement before each use of the Service by you.  By using the Service or Application after any such changes, you will be deemed to have consented to such changes.  We further reserve the right to change any and all content, software and other items used or contained in the Hitch platform and the Service at any time without notice.

 

3. Termination; Cancellation of Account.  We may terminate your participation in the Service and terminate any license granted under this Agreement at any time, for any reason, with or without cause, and without notice.  Upon such termination all remaining terms of this Agreement will remain in full force and effect.  If you wish to cancel your account, please contact us at or through HITCHIT.co/support.

 

4. Limitations of Service.

 

a. You are allowed to use the Service and Application in accordance with the terms and conditions contained in this Agreement.  You may use the Service or Application solely for your personal use.  In order to use the Service or Application you must be at least 18 years of age, and not under any legal incapacity.

b. The Service and Application are intended to be used only to facilitate casual deliveries between unregulated Shippers and Travelers using personal cars or SUVs, or by foot, bicycle, or motorbike.  Therefore, (i) YOU MAY NOT USE THE SERVICE OR APPLICATION TO TRANSPORT ILLEGAL DRUGS AND NARCOTICS, WEAPONS, CHEMICALS, PEOPLE, LIVESTOCK, PROHIBITED MATERIALS, HAZARDOUS MATERIALS, OR ANY MATERIALS THE TRANSPORTATION OF WHICH IS SUBJECT TO ANY FEDERAL, STATE, OR LOCAL LAWS OR REGULATIONS.  (ii) YOU MAY NOT USE THE SERVICE OR APPLICATION IF YOU ARE SUBJECT TO LICENSING OR REGULATION AS A MOTOR CARRIER, MOVER, OR BROKER, OR IF YOUR ACTIVITIES AS A TRAVELER OR SHIPPER SUBJECT YOU TO ANY LICENSING OR REGULATION REQUIREMENTS.  (iii) YOU MAY NOT USE THE SERVICE OR APPLICATION TO MAKE DELIVERIES USING ANY COMMERCIAL VEHICLE.

c. WE ARE NOT A MOTOR CARRIER, MOVER, OR BROKER AND WE DO NOT PROVIDE CARRIAGE, MOVING, OR BROKERAGE SERVICES.  We do not screen users of the Service in any way nor do we arrange for shipments or deliveries, or refer a Shipper to a Traveler or a Traveler to a Shipper.  It is up to the Shipper or Traveler to decide whether or not to arrange delivery services by or for a Traveler or Shipper contacted through Hitch.  The decision to offer or accept delivery services once you make contact with a Traveler or Shipper through Hitch, and any decision as to the terms and conditions of such services, are decisions made solely by you in your sole discretion.  WE PROVIDE ONLY A SERVICE TO CONNECT TRAVELERS WITH SHIPPERS.  WE HAVE NO RESPONSIBILITY OR LIABILITY FOR ANY DELIVERY SERVICES SO PROVIDED.

 

5. Non-circumvention.  By using the Service or Application to make contact with another user, whether as a Shipper or Traveler, you agree that all current and future delivery transactions between you and that user will be conducted only through the Service or Application.  You may not circumvent or bypass the Service or Application in order to directly enter into a delivery arrangement or agreement with such Shipper or Traveler.

 

6. User Obligations.  You have sole responsibility for all activities that occur under your password or account.  You are solely responsible for your interactions with other users. You will keep your account password and any other identification that allows access to the Service secure and confidential.  You will notify us immediately if you suspect that any unauthorized person may be using your password or account or if you suspect any other breach of security.  You will provide us with any information relevant to your account that we may reasonably request.  It is your sole responsibility to download the correct Application for your device.  If you are a Traveler, you are responsible for determining your own delivery route.

 

7. User Warranties.  You expressly represent and warrant that:

 

a. You have the legal right, authority and capacity to enter into this Agreement and to comply with its terms;

b. You are at least 18 years old and not under any legal incapacity;

c. You either are the sole and exclusive owner of all content that you make available through the Service or Application, or you have the legal right to grant to us the right to use such content; and

d. Neither such content nor your making available of such content will infringe, misappropriate or violate any third party’s legal rights or violate any applicable law or regulation.

 

8. User Restrictions.  You may not, directly or indirectly, in connection with your use of the Service or Application:

 

a. Use the Service or Application or any of our content in violation of this Agreement;

b. Authorize others to use your user account, or assign or otherwise transfer your user account to any other person;

c. Access the Service or Application using unauthorized means or an incompatible or unauthorized device;

d. Infringe or violate in any way the legal rights of the owner of any copyrighted material, trademarks, or proprietary or confidential information or other property rights;

e. Express or imply that any statements you make are endorsed by or attributable to us, remove any copyright, trademark or other proprietary rights notices contained in the Service or Application, or otherwise interfere with or infringe our copyright, trademark or other proprietary or commercial rights;

f. Send spam in violation of applicable laws or regulations, distribute any unlawful material, or otherwise violate any law or regulation;

g. Create a nuisance, "stalk" or otherwise harass any person, post or distribute any content or material that is in any way tortious, obscene, threatening, libelous, fraudulent, harmful, or in violation of any other person’s privacy rights, or otherwise use the Service or Application in a tortious manner, for a fraudulent purpose, or in a manner that in any way violates or impairs the legal rights of others;

h. Interfere with or disrupt the Application or Service or its related infrastructure or attempt to retrieve, index, "data mine", reproduce, or circumvent the navigational structure or presentation of the Service or its contents;

i. Transmit or otherwise distribute any content that contains any viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs that may adversely affect the functionality of any software, equipment, or network, or that may in any way interfere with or disrupt the integrity or performance of the Application or Service or our content;

j. Decipher, decompile, disassemble, reverse engineer, modify, adapt, sublicense, translate, sell, resell, transfer, assign, or distribute the Service or the Application, or make derivative works based upon, or otherwise make available to any third party or commercially exploit any portion or derivative of the Service or Application or other content of ours; or

k. Impersonate any person or entity or forge headers or otherwise manipulate identifiers that results in disguising the origin of any information transmitted through the Service, or "frame" or "mirror" any part of the Service, or use meta tags or code or other devices containing any reference to us or the Service that may direct any person to any other web site for any purpose.

 

9. Limited License Granted by Us.  Subject to our right to terminate your right to use the Service, you have a limited non-exclusive, non-transferable license to:

a. Download and install a copy of the Application only on devices that you own or control and to run such copy of the Application solely for your own personal use.

b. View, download and print any content that we make available through the Service or Application, excluding content provided by other users, solely for your personal and non-commercial use, and to view any content provided by other users to which you are permitted access, solely for your personal and non-commercial use.

c. Use the Application and Service in compliance with this Agreement.

 

No other licenses, express or implied, are granted by us in any intellectual property rights or other rights owned or controlled by us.  You have no right to sublicense any of the license rights granted in this section.

 

10. License Granted by You.  You hereby grant to us a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, use, view, copy, adapt, modify, distribute, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast and otherwise exploit, all content you make available on or through the Service or Application.  This license will not affect your ownership rights in any of your content, and nothing in this Agreement will be deemed to reduce or restrict such rights.

 

11. Apple App Store Application.  The following additional terms and conditions apply to any Apple App Store-sourced Application, and will govern over any inconsistent terms of this Agreement:  (a) This Agreement is concluded between us and you, and not with Apple, and Apple bears no responsibility for the Application and the content thereof.  (b) Apple’s Usage Rules for Licensed Applications set forth in the App Store Terms of Service (which you acknowledge you have had the opportunity to review) apply to your use of the Service or Application, and to the extent there is a conflict between the terms of this Agreement and the terms of the App Store Terms of Service, the more restrictive terms will apply.  (c) The license granted to you for the Application is limited to a non-transferable license to use the Application on any iPhone or iPod touch that you own or control and as permitted by the Usage Rules set forth in the App Store Terms of Service.  (d) Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Application.  (e) In the event of any failure of the Application to conform to any applicable warranty, the end-user may notify Apple, and Apple will refund the purchase price for the Application to you.  To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Application.  (f) Apple is not responsible for addressing any claims by a user or any third party relating to the Application or the your possession and/or use of that Application, including, but not limited to: (i) product liability claims; (ii) any claim that the Licensed Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.  (g) In the event of any third party claim that the Application or your possession and use of that Application infringes that third party’s intellectual property rights, Apple not bear any responsibility for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.  (h) You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.  (i) Any user questions, complaints or claims with respect to the Application should be directed to us in accordance with the Notifications section of this Agreement.  (j) Apple, and Apple’s subsidiaries, are third party beneficiaries of this Agreement, and Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary thereof.  (k) We are a third party beneficiary of Apple’s App Store Terms of Service, and we have the right (and will be deemed to have accepted the right) to enforce such terms of Service against you as a third party beneficiary thereof.

 

12. Traveler Ratings.  The Service and Application may contain a feature for Shippers to rate Travelers according to a five star rating system, which rating will be displayed by the Application (the “Traveler Rating”).  Higher rated Travelers may be provided more delivery opportunities in our sole and absolute discretion.  Lower rated Travelers may be provided fewer delivery opportunities or may be denied access to delivery opportunities in our sole and absolute discretion.  An unrated Traveler will receive the highest initial rating.  All subsequent ratings will be averaged.

 

13. Right to Monitor; Privacy Policy.  We have no obligation to monitor your or any other user’s access to or use of the Service, the Application, or content, but we reserve the right to do so for the purpose of ensuring your compliance with this Agreement and monitoring your disputes with other users.  Please also see our Privacy Policy, the terms and conditions of which are incorporated by reference into this Agreement.

 

14. Copyright Policy.  We respect your intellectual property rights and the intellectual property of others. If you believe that any content posted by us infringe upon your copyrights, you must notify us immediately.

 

15. Fees; Payment Terms.

 

a. The Hitch platform will automatically calculate and set the fee to be paid by the Shipper (the “Shipper’s Fee”) and the fee to be paid to the Traveler (the “Traveler’s Fee”) for each delivery arranged through the Service and Application.  The Application will display the Shipper’s Fee to the Shipper and will display the Traveler’s Fee to the Traveler.  The Traveler’s Fee is automatically calculated by a formula based upon the estimated cost of fuel as published by the US Department of Energy, the approximate mileage between the pick-up and delivery locations, and estimated parking fees if applicable.  All payments will be made through Stripe, Inc.’s (“Stripe”) service.  The Shipper’s Fee is equal to the Traveler’s Fee plus Stripe’s account merchant fee plus the fee paid to us (“Our Fee”).  The Shipper and Traveler, by agreeing to a delivery arranged through the Application, are each deemed to have accepted and agreed to these fees.

b. The Application will require a Traveler to have or establish a Stripe account in order to receive the Traveler’s Fee.  The Traveler must maintain its Stripe account in good standing, and must at all times be in compliance with Stripe’s most recent Terms of Service.  We are a third party beneficiary of the Stripe’s Terms of Service and may directly enforce those terms against the Traveler as a third party beneficiary in our sole discretion.  As a convenience the Application will assist the Traveler in completing the Stripe sign up information by automatically providing the Traveler with certain information previously obtained during the user’s signup as well as a URL if the Traveler does not have one.  Traveler shall have the option of changing the provided information.

c. The Shipper shall pay the Shipper’s Fee through the Application, using the Shipper’s personal credit card.  A hold in the amount of the Shipper’s Fee will be placed on the Shipper’s credit card by Stripe as soon as the Traveler accepts the delivery.  Stripe will charge the Shipper’s Fee to the Shipper’s credit card as soon as the Traveler confirms through the Application that the Traveler has completed the delivery.  Shipper and Traveler shall contact Stripe to resolve any disputes as to charges or credits.  Without limiting the generality of the foregoing, if the Shipper objects to payment for any reason, including but not limited to failure of the Traveler to make delivery, or damage or loss to the shipped item, the Shipper shall contact Stripe to request a cancellation of the charge.  ALL DISPUTES BETWEEN THE TRAVELER AND SHIPPER OF ANY NATURE, INCLUDING BUT NOT LIMITED TO FAILURE OF THE TRAVELER TO MAKE DELIVERY, DAMAGE OR LOSS TO THE SHIPPED ITEM, OR NON-PAYMENT BY THE SHIPPER, SHALL BE RESOLVED BETWEEN THE TRAVELER AND SHIPPER, AND WE SHALL HAVE NO LIABILITY FOR OR RESPONSIBILITY TO RESOLVE SUCH DISPUTES.

d. Our Fee is automatically deducted from the Shipper’s Fee and paid directly to us by Stripe.  Our Fee is due immediately and is non-refundable, even in the event of termination of your right to use the Service, the Application, or any licenses granted hereunder. We reserve the right to change our fees at any time without prior notice.  Stripe’s account merchant fee will also be deducted by Stripe from the Shipper’s Fee for each completed delivery.  The net amount remaining from the Shipper’s Fee after these deductions will be the Traveler’s Fee, which will be deposited by Stripe to the Traveler’s bank account or debit card as directed by the Traveler in his or her Stripe account setup.

e. Third party message and data rates may also apply and are your sole responsibility.

 

16. Intellectual Property Ownership.  We own all right, title and interest in and to the Application, the Service, and any content provided by us, including all related intellectual property rights, including but not limited to copyright, patent, trademark, and confidential information rights, and any variations or derivatives thereof created by any person.  This Agreement does not convey to you any license or rights of ownership in such rights.

 

17. Third Party Advertising.  We may utilize in our sole discretion third party advertising through the Application or Service, and you agree to receive such advertising and marketing.  If you do not wish to receive such advertising you must notify us immediately.  We may charge you a higher fee for the Service or Application should you choose not to receive such advertising, which higher fee, if applicable, will be posted on our website.  We may compile and release information regarding you and your use of the Application or Service on an anonymous basis as part of a customer profile or similar report or analysis.

 

18. Indemnification.  By entering into this Agreement and using the Application or Service, you agree that you shall defend, indemnify and hold us, our licensors and each such party's parent organizations, subsidiaries, affiliates, successors, officers, directors, users, employees, licensors, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with: (a) your violation or breach of any term of this Agreement or any applicable law or regulation, whether or not referenced herein; (b) your violation of any rights of any third party, including providers of delivery services arranged via the Service or Application, or (c) your use or misuse of the Application or Service.

 

19. DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY

 

a. The Service and Application may display a delivery route that is for illustration only.  We disclaim all liability for the suitableness of the illustrated route.

b. The Service and Application are provided to you strictly on an "as is" basis.  Neither we nor our parent organizations, subsidiaries, affiliates, successors, officers, directors, users, employees, licensors, attorneys or agents make any representation, warranty, or guaranty as to the reliability, safety, timeliness, quality, suitability or availability of any services, products or goods obtained by you through the use of the Service or Application, regardless of nature or cause.  You acknowledge and agree that you bear the entire risk of loss arising out of your use of the Application or Service or any third party products or services, whether or not such loss results from our negligence or gross negligence, to the maximum extent permitted by law.

c. Neither we nor our parent organizations, subsidiaries, affiliates, successors, officers, directors, users, employees, licensors, attorneys or agents will be liable for any damages of any nature, whether direct, indirect, incidental and/or consequential, punitive, special, or exemplary, arising out of the use of the Service or Application, directly or indirectly, including, without limitation, economic loss, physical damages (including but not limited to damage to your computer, mobile phone, or other hardware), bodily injury, death and or emotional distress or discomfort, to the maximum extent permitted by law.

d. Without limiting the generality of any of the foregoing, to the maximum extent permitted by law neither we nor our parent organizations, subsidiaries, affiliates, successors, officers, directors, users, employees, licensors, attorneys or agents bear any liability of any nature or from any cause, including but not limited to (a) your interactions with other users; (b) the acts of other users, including but not limited to users’ Traveler Ratings; (c) the use or activities that occur under your password or account; (d) the use of the Application on an incompatible device or the download of the wrong version of the Application for your device; (e) communications line failure or disruption; delays; delivery failures; unauthorized access to, or alteration of user communications; equipment or software malfunction; or network or service problems.

e. WE EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS.

f. Notwithstanding anything to the contrary contained herein, our liability, and the liability of our parent organizations, subsidiaries, affiliates, successors, officers, directors, users, employees, licensors, attorneys and agents, to you or any third parties in any circumstance is limited to $100. Certain state laws do not allow limitations on implied warranties or 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.

 

20. Contact; Notifications.  All contacts or notifications required or desired to be given or delivered under the terms of this Agreement shall be in writing.  We may give notice to you by means of a general notice on the Service, email to your email address on record in your account information, or by facsimile, personal delivery, overnight courier service, or first class mail, to your address on record in your account information, postage prepaid.  You shall give notice to us by email to info@Hitchit.co, with receipt of delivery requested, or by first class certified mail, return receipt requested, postage prepaid to Caluzo, Inc., P.O. Box 272682, Tampa, FL 33688,.  Personally delivered notifications, emailed notifications, and notifications sent by overnight courier service will be deemed given when delivered. Mailed notices shall be deemed given on the second business day after mailing.

 

21. Assignment.  This Agreement may not be assigned by you without our prior written approval.  We may assign this Agreement without prior notice to you or your consent to (a) a parent or subsidiary, (b) an acquirer of assets, or (c) a successor by merger. Any purported assignment in violation of this section shall be void.

 

22. Dispute Resolution.  Any controversy or claim arising out of or related to this Agreement or the breach thereof, including but not limited to the use of the Service or Application, the interpretation, enforceability, revocability, or validity of the Agreement, or the arbitrability of any dispute, shall be resolved by binding arbitration in accordance with the appropriate Arbitration Rules of the American Arbitration Association, at a mutually agreed upon location in Hillsborough County, Florida.  The arbitration award may be entered as a final judgment in any court having jurisdiction thereon.  Any dispute as to whether a controversy or claim is subject to arbitration shall be submitted as part of the arbitration proceeding.  All arbitration proceedings shall be conducted by a panel of three arbitrators.  The party requesting arbitration shall have the right to select one arbitrator and the person or persons on the other side of the controversy shall select a second arbitrator.  The two arbitrators so chosen shall select the third.  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. YOU ACKNOWLEDGE AND AGREE THAT YOU AND WE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING.

 

23. Governing Law. The construction and interpretation of this Agreement shall at all times and in all respects be governed by the laws of the State of Florida, without regard to said state’s conflicts of laws rules.  Exclusive venue for all actions relating to this Agreement shall be in the state or federal courts of Hillsborough County, Florida.

 

24. Miscellaneous.  (a) This Agreement shall bind and inure to the benefit of the successors, assigns, personal representatives, heirs and legatees of the parties hereto.  (b) This Agreement will not be construed more strictly against one party than another merely by virtue of the fact that it may have been prepared by us.  (c) This Agreement represents the entire understanding between the parties hereto with respect to the subject matter hereof and this agreement supersedes all other or previous representations, understandings, or agreements, oral or written, between the parties with respect to the subject matter hereof, and cannot be modified except by a written instrument signed by the parties hereto.  (d) It is intended by this Agreement that the parties shall be independent contractors as to each other and that no agency, employment, partnership, joint venture, or similar relationships shall be created hereby between you and us.  (e) Except as expressly provided in this Agreement, no person shall be a third party beneficiary of this Agreement.  (f) No waiver of any provisions of this agreement shall be effective unless it is in writing, signed by the party against whom it is asserted. Any such waiver shall be applicable solely to the specific instance to which it relates and shall not be deemed to be a continuing waiver.  (g) Captions and paragraph headlines in this agreement are for convenience and reference only and do not define, describe, extend or limit the scope or intent of this agreement or any provision herein; (h) In the event that any of the terms, conditions or covenants of this Agreement are held to be unenforceable or invalid by any court of competent jurisdiction, the validity and enforceability of the remaining provisions, or portions thereof, shall not be affected thereby and effect shall be given to the intent manifested by the provisions, or portions thereof, held to be enforceable and valid.

 

Copyright © 2014, CALUZO, INC.

TERMS OF USE   PRIVACY