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Scoop Commute Program Agreement

EFFECTIVE JANUARY 1ST, 2020

Program

Scoop Technologies, Inc. (“Scoop”) will provide the Program (the “Program”) to Customer (the “Customer”) as described in a Scoop Program Order Form (the “Order Form”) and executed by the parties. Each Order Form, together with this Program Agreement (the “SPA”), and any incorporated terms, form the entire agreement (the “Agreement”) that applies to the Program. If any conflict exists between any of these documents, the Order Form will govern, followed by this SPA.

Relationship of the Parties

Scoop is an independent contractor and is not an agent, servant, employee, legal representative, partner, joint venturer, co-employer, or statutory employer with respect to Customer or any affiliate of Customer and neither party has any authority of any kind to bind the other in any respect. Nothing in this Agreement shall be deemed to create a joint venture or partnership between Scoop and Customer or Customer’s affiliates, except to the extent that is understood that Scoop and Customer are jointly arranging to effectively lease drivers’ automobiles for the limited purpose of facilitating expense-sharing arrangements between carpoolers. Scoop has the sole right and obligation to supervise, manage, and direct all work to be performed by Scoop personnel under the Agreement.

Customer acknowledges that participation by its employees and/or contractors in the Scoop Program is strictly voluntary, and thus no inference should be drawn that in participating in the Program, any employee is acting in the course and scope of its employment, nor does this contract establish an agency relationship between or with Customer and Scoop.

The fee Customer pays to Scoop is solely for the purpose of administering the Program, and no portion of such fee will subsidize Customer’s employees’ trips. Employee time spent as a rider or a driver in the Scoop Program is not compensable time by Customer and will not be paid by Customer. Additionally, Customer will not play any role in determining the amount of expenses to be shared or reimbursed between passengers and drivers, which is in the sole discretion of Scoop, and Customer is not responsible for reimbursing drivers participating in the Scoop Program, including but not limited to reimbursements paid for mileage or other expenses incurred as a result of participation in the program.

Customer employees’ usage of the Scoop mobile applications (the “Scoop App”) will be governed by the terms and conditions set forth in the Scoop App. All Scoop users, including Customer employees, must agree to Scoop’s Terms of Service (www.takescoop.com/legal/terms) in order to use the Scoop App. All issues related to Scoop trips will be settled directly between the employee and Scoop. Customer is not liable for any issues that a Customer employee might have with Scoop.

Subcontracting

Scoop may not subcontract its obligations under this Agreement, in whole or in part, to any other person or entity absent Customer’s prior written approval. Scoop will be solely liable for any such approved subcontractor’s performance.

Scoop may, in the ordinary course of business, utilize third party services or products that are not dedicated to providing the Program for Customer and that are not material to any particular function constituting a part of the Program. Scoop may also engage individual independent contractors to supplement its employee workforce. Such arrangements do not constitute subcontracting for purposes of this section. Scoop will nevertheless be responsible for such parties.

Insurance Requirements

Scoop shall, at its sole expense, during the term and continuing until one (1) year after the expiration or earlier termination of this Agreement, obtain and maintain:

Commercial general liability coverage for limits no less than $1,000,000 per occurrence and $2,000,000 in the aggregate
Umbrella liability for limits no less than $5,000,000 per occurrence and $5,000,000 in the aggregate
Automobile liability insurance on all hired and non-owned vehicles with minimum coverage of at least $1,000,000 combined single limit per occurrence for bodily injury and/or property damage, and physical damage insurance for the actual cash value of each such vehicle
Errors and omissions liability insurance covering liability for loss or damage due to an act, error, omission or negligence. Cyber liability insurance (including third party coverage and notification/breach response coverage). Combined aggregate limit of no less than $1 million ($1,000,000) with an excess $1,000,000 limit sitting over top providing a total available limit of $2,000,000
Financial crime coverage for limits no less than $1,000,000 per occurrence and $1,000,000 in the aggregate

Scoop shall also comply with all applicable workers’ compensation and other applicable laws regarding Scoop personnel in all locales where Scoop personnel perform in connection with the Agreement.

Customer, at its discretion, can choose to be named an additional insured on relevant Scoop insurance policies by notifying Scoop.

Term and Termination

This Agreement shall commence upon the effective date set forth in the first Order Form, and, unless earlier terminated in accordance herewith, shall last until the expiration of all Order Form terms.

In the event of a material breach of this Agreement by either party, the non-breaching party may terminate this Agreement by providing written notice to the breaching party, provided that the breaching party does not materially cure such breach within thirty (30) days of receipt of such notice.

All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, accrued payment obligations, ownership provisions, warranty disclaimers, indemnity, and limitations of liability.

Payment

Customer shall pay Scoop the fees and approved expenses for the Program as set forth in each Order Form (“Fees” and “Expenses”). Unless otherwise specified in an Order Form, all Fees and Expenses shall be invoiced monthly in arrears, and all invoices issued under this Agreement are payable in U.S. dollars within thirty (30) days from date of invoice. Past due invoices are subject to interest on any outstanding balance of the lesser of 1.5% per month or the maximum amount permitted by law. No interest will accrue on amounts Customer is disputing in good faith. The parties shall work in good faith to resolve any disputed invoices. Customer shall be responsible for all taxes associated with the Program (excluding taxes based on Scoop’s net income). All Fees and Expenses paid are non-refundable and are not subject to set-off. Scoop may suspend or limit Customer’s access to or use of the Program if Customer’s account is more than forty-five (45) days past due.

Confidentiality

Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information or data relating to the Disclosing Party’s technology or business. “Confidential Information” shall mean any such information or data disclosed under the Agreement that:

If tangible, is clearly marked as confidential or with a similar designation,
If intangible, is identified by the Disclosing Party as confidential at the time of disclosure, or
From the relevant circumstances should reasonably be known by the Receiving Party to be confidential.

The Receiving Party agrees:

Not to divulge to any third person any such Confidential Information,
To give access to Confidential Information solely to those employees with a need to have access thereto for purposes of this Agreement, and
To take the same security precautions to protect against disclosure or unauthorized use of such Confidential Information that the party takes with its own Confidential Information, but in no event will a party apply less than reasonable precautions to protect such Confidential Information.

The Disclosing Party agrees that the foregoing will not apply with respect to any information that the Receiving Party can document:

Is or is becoming generally available to the public without any action by, or involvement of, the Receiving Party,
Was in the Receiving Party’s possession or known by it prior to receipt from the Disclosing Party,
Was rightfully disclosed to it without restriction by a third party, or
Was independently developed without use of any Confidential Information of the Disclosing Party.

Nothing in this Agreement will prevent the Receiving Party from disclosing the Confidential Information pursuant to any judicial or governmental order, provided that the Receiving Party gives the Disclosing Party reasonable prior notice of such disclosure to contest such order.

Upon expiration or termination of this Agreement, each party will promptly return or destroy all Confidential Information.

Notwithstanding anything else, user information collected by Scoop directly from its users (whether or not such users are associated with Customer) will be handled as described in Scoop’s Privacy Policy (www.takescoop.com/legal/privacy) and shall not be considered Customer Confidential Information hereunder.

Notwithstanding anything else, Scoop may disclose that Customer is a customer of Scoop and may use Customer’s name and logo in connection with (i) sales and marketing activities to current and prospective customers, and (ii) diligence activities by potential and actual investors and acquirers; in such circumstances, Scoop will not disclose the terms of the Agreement without prior written consent by Customer.

Data Security

Scoop will use commercially reasonable efforts to comply with industry standard security measures with respect to personnel, facilities, hardware and software, storage and networks, access controls, monitoring and logging, vulnerability and breach detection, incident response, encryption, and other organizational and technical measures necessary to protect against unauthorized or accidental access, loss, alteration, disclosure, or destruction of sensitive data in its possession, as well as with all applicable data privacy and security laws, regulations, and standards. Notwithstanding the foregoing, the parties acknowledge and agree that the Program does not require Scoop to use or access any personally identifiable information supplied by Customer, and Customer shall not provide Scoop with any personally identifiable information.

With respect to Customer’s employees who use the Scoop App, Scoop will safeguard Customer employee data and usage data in accordance with Scoop’s Privacy Policy available at www.takescoop.com/legal/privacy, as updated from time to time.

Intellectual Property Rights and Ownership

As between the parties, each party retains all right, title, and interest in and to its software, applications, platform technology, data, and websites, including all intellectual property rights therein. No rights or licenses are granted except as expressly and unambiguously set forth in this Agreement. Unless otherwise expressly stated in an Order Form, there are no deliverables and there is no work product under this Agreement.

Customer may from time to time provide suggestions, comments or other feedback to Scoop with respect to the Program, the Scoop App or the customer dashboard (“Dashboard”) provided to deliver the reporting described in the Order Form (“Feedback”). Customer shall, and hereby does, grant to Scoop a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid up license to use and exploit the Feedback for any purpose.

Restrictions

Except as expressly set forth in this Agreement, Customer shall not (and shall not permit any third party to), directly or indirectly:

Reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms supporting the Program, Dashboard or the Scoop App (except to the extent applicable laws specifically prohibit such restriction);
Use the Program, Dashboard, or Scoop App for any purpose other than Customer’s own use for the benefit of its employees;
Modify, translate, or create derivative works based on the Program, Dashboard or Scoop App; or
Use the Program, Dashboard or Scoop App to build an application or product that is competitive with any Scoop product or service.

Warranties

Scoop will, at its cost and expense, obtain all necessary regulatory approvals, licenses, and permits applicable to its business.

Each party represents and warrants that:

It will comply with all applicable laws, orders, codes, and regulations, including all privacy laws and U.S. sanctions laws, in its performance under the Agreement;
It will fulfill all responsibilities diligently, in a timely manner, and in accordance with the time and site schedules set forth in the Order Form; and
In entering into the Agreement, it does not rely on any promise, statement, representation or warranty (whether in writing or not) of any person (whether party to the Agreement or not) relating to the subject matter of the Agreement, other than as stated in the Agreement.

Indemnification

Each party (“Indemnitor”) shall defend, indemnify, and hold harmless the other party, its affiliates, and each of its and its affiliates’ employees, contractors, directors, suppliers and representatives (collectively, the “Indemnitee”) from and against any claims, demands, liabilities, losses, causes of action, damages, judgments, and settlements, payable to an unaffiliated third party (including all related reasonable costs and expenses, including attorney’s fees), arising from any claim that any of the following infringes, violates, or misappropriates any third party intellectual property or proprietary right:

Customer’s use of the Program outside its intended use (in the case of Customer as Indemnitor);
The Program, Dashboard or Scoop App (in the case of Scoop as Indemnitor).

The foregoing indemnification is subject to the Indemnitee providing the Indemnitor with:

Notification in writing of any third party claim promptly following receipt of that claim to allow the Indemnitor to investigate and defend the matter. However, failure to give the notice will only relieve the Indemnitor of its indemnity obligations to the extent Indemnitor is prejudiced by the failure.
The option to assume sole control over the defense and settlement of any claim (provided that the Indemnitee may participate in such defense and settlement at its own expense).
Reasonable information and assistance in connection with such defense and settlement (at the Indemnitor’s expense).

The foregoing obligations will not apply to Scoop with respect to any information, technology, materials, or data (or any portions or components of the foregoing) to the extent they are:

Not created or provided by Scoop;
Made in whole or in part in accordance to Customer specifications;
Modified after delivery by Scoop; or
Combined with other products, processes, or materials not provided by Scoop (where the alleged losses arise from or relate to such combination).

Limitation of Liability

EXCEPT FOR THE PARTIES’ INDEMNIFICATION OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY, NOR ITS DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT (I) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, OR (II) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) THE FEES PAID (OR PAYABLE) BY CUSTOMER TO SCOOP HEREUNDER IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO A CLAIM HEREUNDER.

Disclaimer

EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE PROGRAM, DASHBOARD, AND SCOOP APP ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND ARE WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE, USAGE OF TRADE, OR COURSE OF DEALING, ALL OF WHICH ARE EXPRESSLY DISCLAIMED.

Miscellaneous

This Agreement represents the entire agreement between Customer and Scoop with respect to the subject matter hereof, and supersedes all prior or contemporaneous communications and proposals (whether oral, written or electronic) between Customer and Scoop with respect thereto.
The Agreement shall be governed by and construed in accordance with the laws of the State of California, excluding its conflicts of law rules, and the parties consent to exclusive jurisdiction and venue in the state and federal courts located in San Francisco, California.
All notices under this Agreement shall be in writing and shall be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. Notices must be sent to the contacts for each party set forth on the Order Form, or such other address as a party may provide by giving notice to the other party in accordance with the foregoing.
Except as otherwise provided herein, this Agreement may be amended only by a writing executed by both parties.
Except for payment obligations, neither party shall be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond such party’s reasonable control, including, without limitation, the elements; fire; flood; severe weather; earthquake; vandalism; accidents; sabotage; power failure; denial of service attacks or similar attacks; Internet failure; acts of God and the public enemy; acts of war; acts of terrorism; riots; civil or public disturbances; strikes, lock-outs or labor disruptions; any laws, orders, rules, regulations, acts or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts.
Neither party may assign the Agreement in whole or in part without the other party’s prior written consent (which consent will not be unreasonably denied, delayed or conditioned), except to an affiliate or a successor in connection with a merger or sale of all or substantially all of a party’s assets or stock.
No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect.
In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and attorneys’ fees.
If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable.
The failure of either party to act with respect to a breach of this Agreement by the other party shall not constitute a waiver and shall not limit such party’s rights with respect to such breach or any subsequent breaches.