Terms of Use

Last Updated August 10, 2020 3:00 PM

The following Terms of Use (“Terms”) constitute a binding legal agreement between you and Boomerang LLC (“Boomerang”, “we”, “us”, or “our”). These Terms govern your access to and use of all Boomerang websites, mobile applications (each, an “Application”), content (including, without limitation, the Boomerang Content), products, and related services (collectively, the “Boomerang Platform” or the “Platform”). READ THESE TERMS CAREFULLY AS THEY CONSTITUTE A LEGAL AGREEMENT BETWEEN YOU AND BOOMERANG.

 

IMPORTANT: PLEASE REVIEW THE ARBITRATION AGREEMENT SET FORTH IN SECTION 17 BELOW CAREFULLY, AS IT WILL REQUIRE YOU TO RESOLVE DISPUTES WITH BOOMERANG ON AN INDIVIDUAL BASIS THROUGH FINAL AND BINDING ARBITRATION.

 

BY ACCESSING OR USING ANY PORTION OF THE PLATFORM, YOU AGREE TO THESE TERMS, INCLUDING THE MANDATORY ARBITRATION PROVISION AND CLASS ACTION WAIVER IN SECTION 17.  IF YOU DO NOT AGREE, DO NOT ACCESS OR USE THE PLATFORM.

 

These Terms incorporate by reference our COVID-19 Ride StandardsRules of the Road, Pricing and Payment Terms, Zero Tolerance Policy and all other agreements, policies, documents and pages referred to herein or expressly incorporated via our website, all as may be amended by us from time to time in our discretion. For more information, please visit our website at www.boomerangrides.com.

If you have any questions about these Terms or our Platform, please contact us at support@boomerangrides.com.

1. CHANGES TO THESE TERMS

 

We may make changes to these Terms from time to time at our discretion.  If we make changes, we will post the amended Terms to our Platform and update the “Last Updated” date above.  We may also attempt to notify you by sending an email notification to the address associated with your account or providing notice through our Platform. Boomerang also reserves the right to modify any information contained in any agreements, policies, pages and documents incorporated herein by reference or any information referenced in any of the hyperlinks set forth in these Terms (or in any such other agreement, policy, page or document), and such modifications shall become effective upon posting. 

 

Unless we indicate otherwise in our notice, the amended Terms will be effective immediately and your continued access to and use of our Platform after we provide notice will confirm your acceptance of the changes.  Unless material changes are made to the arbitration provisions herein, you agree that modification of these Terms does not create a renewed opportunity to opt out of arbitration (if applicable).  If you do not agree to the amended Terms, you must stop accessing and using our Platform.


 

2. DESCRIPTION OF SERVICE

 

The Boomerang Platform is an application based software service that enables Users to arrange and schedule rides for minors ages five through seventeen. “Users” refers to and includes independent contractors who use an approved personal vehicle to provide transportation and caregiving services (“Drivers”), and “Organizers” (including parents/guardians) who need transportation for family members and/or other riders for whom they are legally authorized to arrange rides (collectively, “Riders”). Organizers and Drivers are free to use the Boomerang Platform to communicate and contract with one another regarding transportation arrangements made through the Boomerang Platform. Transportation and caregiving services provided by Drivers to Organizers and Riders who are matched through the Platform shall be referred to collectively as the “Driver Services”. Drivers use the Boomerang Platform to advertise their Driver Services to other Users. Any decision by a User to offer or accept Driver Services is a decision made in that User’s sole discretion. Driver Services provided by a Driver at the request of an Organizer constitute a separate agreement between that Driver and that Organizer, and Boomerang is not a party to that agreement. However, Organizers are required to pay Drivers for the Driver Services using the Boomerang Platform.

 

YOU ACKNOWLEDGE THAT THE SERVICES PROVIDED BY BOOMERANG ARE MERELY A TECHNOLOGY PLATFORM; THAT BOOMERANG DOES NOT PROVIDE YOU WITH ANY TRANSPORTATION OR CARE GIVING SERVICES, AND THAT YOUR ABILITY TO OBTAIN TRANSPORTATION OR CHILD CARE SERVICES THROUGH THE PLASTFORM DOES NOT ESTABLISH BOOMERANG AS A TRANSPORTATION CARRIER OR AS A PROVIDER OF TRANSPORTATION OR CHILDCARE SERVICES.

 

Drivers are not employees of Boomerang but rather provide the transportation or caregiving services directly to Organizers.  Although Boomerang conducts certain screening of Drivers, any agreement regarding the Driver Services is strictly between you and the Driver, and Boomerang is not responsible or liable for the Driver Services or for the conduct, acts or omissions of any Driver.

 

Boomerang and the Drivers reserve the right to refuse services to any passenger, at their discretion, except no person may be refused service on the basis of race, national origin, religion, gender, gender identity, physical or mental disability, medical condition, marital status or sexual orientation, or any other characteristic protected by law.

 

Boomerang also facilitates payments between Organizers and Drivers who provide Driver Services, in accordance with Section 20 below.

 

a. Organizers and Riders. Each Organizer will need to create an account in order to access or use the Boomerang Platform. As an Organizer, you have the ability under your account to add Riders for whom you will be arranging Driver Services and to provide certain information about such Riders. For each Rider that you add to your account, you represent and warrant that you have all authorizations, consents, and approvals that may be required in order to provide all information you submit about the Rider.

Please see our Privacy Policy for information on how Boomerang collects, uses and discloses information from Users.

 

b. Carpools. Shared rides (“Carpools”) may be available through the Application.  When available, this feature will allow your Riders to share Rides with other Users’ Riders. Each Rider’s parent or legal guardian must have an active account with Boomerang.  Users may be part of multiple Carpool groups (each, a “Carpool Group”).  A User who organizes and manages a Carpool Group and the related Carpool Rides is the “Carpool Organizer” (he or she is also considered an “Organizer” for purposes of other terms and conditions), while the other Users in the Carpool Group are “Carpool Members”.  Carpool Organizers can set up a single, one-time Carpool, or recurring Carpools.  The Ride Fee for any given Carpool Ride will depend on (among other things) the number of Carpool Members and Riders participating in the Carpool Ride.  In all cases, the Carpool Organizer will be charged the full Ride Fees (and, if applicable, wait fees and cancellation fees) associated with all Carpool Rides (including, without limitation, the fees associated with the Carpool Organizer’s Riders and the fees associated with the Carpool Members’ Riders), and only the Carpool Organizer will be able to tip the Drivers.  It will then be up to the Carpool Organizer to obtain appropriate reimbursement from the applicable Carpool Members outside the scope of the Application.  Carpool Organizers shall promptly share estimate fees and costs for any given Ride with all Carpool Members.  With respect to each Carpool Group and the related Carpool Rides, the functionality of the Application is different for Carpool Organizers and Carpool Members.  For example, currently, only Carpool Organizers can do the following:  schedule, change and cancel Carpool Rides; review, accept and rate Drivers; directly tip Drivers; terminate the Carpool Group and remove others as Carpool Members (although each Carpool Member may withdraw themselves from any Carpool Group).  In addition, the contact information and emergency contact information for only Carpool Organizers are provided to Drivers.  Currently, the Application allows Carpool Members to receive notifications regarding Carpool Rides and view and monitor active Carpool Rides.  You agree that we may change Carpool features for Carpool Organizers and Drivers from time-to-time, and/or eliminate the Carpool feature, in our discretion.  By accepting an invitation to join a Carpool Group, you:  (1) authorize the Carpool Organizer to schedule, change and cancel Carpool Rides for your Riders, and (along with other Carpool Members) to view and monitor Carpool schedules, active Carpool Rides and Carpool Rider information, all using the Application, and (2) acknowledge and agree that it is up to the Carpool Organizer and the Carpool Members to make satisfactory arrangements among themselves regarding the creation, scheduling, management and execution of Carpool Rides (including, without limitation, arrangements by which Carpool Members will reimburse the Carpool Organizer for their shares of Ride Fees, other fees/charges and Driver tips), and that we will have no obligations or liabilities with respect to any such arrangements or their enforcement.  We do not screen Carpool Organizers or other non-Driver Users.  While it is up to you to reject or accept Carpool Group invitations in your discretion, you agree to not accept any Carpool Group invitation from any Carpool Organizer, or involving any Carpool Member, who you do not personally know and trust.

 

c. Additional Features. We are always looking for ways to improve our Platform and may add, change, or remove features or offerings at any time.

 

3. REQUIREMENTS FOR USE OF THE BOOMERANG PLATFORM

 

In order to use the Boomerang Platform, you certify your understanding and agreement to all of the following requirements:

 

a. You must be at least eighteen (18) years of age and have the right, authority, and capacity to enter into and abide by the terms and conditions of these Terms and to organize rides. In addition, you must be at least twenty-one (21) years of age to use the Platform to provide Driver Services as a Driver.

If you are a parent or legal guardian of a child under the age of 18 who will be using the Platform or Driver Services, you agree to be fully responsible for the acts or omissions of such Rider in connection therewith and for the acts of anyone you authorize to arrange for Driver Services through our Platform or of any Rider for whom you book any Driver Services.

If you are accessing or using our Platform on behalf of another person, you represent that you are authorized to accept these Terms on that person’s behalf and that the person or entity agrees to be bound by these Terms and responsible to us if you or the other person violates these Terms.

You represent and warrant to Boomerang that you will only book Driver Services for Riders for whom you have been specifically authorized to do so by the parent or legal guardian of the Rider and who have agreed to these Terms.

 

b. You must create an account on our mobile application. You agree not to create more than one account as an Organizer and/or as a Driver. You must not use a false identity or provide any false information to create your account. You may not create an account for someone else unless you have the legal authority to do so. You shall have no ownership or other property interest in your account.

 

c. You must safeguard your username and password information. You may not share this information with anyone else and are responsible for all activity under your account. You agree that you shall monitor your account to restrict use by minors and you shall not allow your children to use your account.

 

d. You agree to provide and maintain true, accurate, current and complete information about yourself at all times that you use the Platform and as may be required by Boomerang.

 

e. Boomerang reserves the right to remove or reclaim any usernames at any time and for any reason.

 

f. You must provide all equipment and software necessary to connect to the Boomerang Platform, including (without limitation) a mobile device that is suitable to connect with and use the Application. You are solely responsible for all expenses and fees (including, without limitation, Internet connection and mobile fees) that you incur when accessing the Application.

 

g. You must treat all information about Users, including profile information about Drivers, Organizers, and Riders, as confidential information. You may use this information only for the purpose of fulfilling your Driver Services as a Driver and/or as reasonably necessary to participate in the Driver Services you arrange for, using the Boomerang Platform. You may not otherwise share this information with any third party.

 

h. You acknowledge and agree that we will record calls placed or received via the Application (such as between Drivers and Organizers) and such calls will be recorded and stored by us. BY ACCEPTING THE TERMS AND PLACING OR ANSWERING A CALL THROUGH THE APPLICATION (whether as a Driver or Organizer), YOU EXPLICITLY CONSENT TO BOOMERANG’S RECORDING, STORING AND REVIEWING SUCH PHONE CALL. IF YOU DO NOT WISH TO PROVIDE SUCH CONSENT, DO NOT PLACE OR ANSWER ANY CALL THROUGH THE APPLICATION.

 

4. MOBILE APPLICATION

a. Subject to your compliance with these Terms, Boomerang grants you a limited, non-exclusive, non-transferable, non-sublicensable and revocable license to download, install and use a copy of the Application on a mobile device that you own or control and to run such copy of the Application solely to access the Platform for your own internal purposes.

 

b. The following terms apply if you install, access or use the Platform on any device that contains the iOS mobile operating system (the “App”) developed by Apple Inc. (“Apple”):

(i). Acknowledgement: You acknowledge and agree that (a) these Terms are concluded between you and Boomerang only, and not Apple, and (b) Boomerang, not Apple, is solely responsible for the Apple iOS Application and content thereof. Your use of the Apple iOS Application must comply with the Apple Media Services Terms and Conditions.

(ii). Maintenance and Support:  You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Apple iOS Application.

(iii). Product Claims:  You and Boomerang acknowledge that, as between Boomerang and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the Apple iOS Application or your possession and use of the Apple iOS Application, including, but not limited to: (1) product liability claims; (2) any claim that the Apple iOS Application fails to conform to any applicable legal or regulatory requirement; and (3) claims arising under consumer protection or similar legislation.

(iv). Intellectual Property Rights:  The parties acknowledge that, in the event of any third-party claim that the App and your possession and use of the App infringe that third party’s intellectual property rights, Boomerang, and not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required under these Terms..

(v). Scope of License:  You and Boomerang acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms as related to your license of the Apple iOS Application, and that, upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms as related to your license of the Apple iOS Application against you as a third party beneficiary thereof.

(vi). Third-Party Terms of Agreement:  Without limiting any other provision of these Terms, you must comply with all applicable third party terms of agreement when using the Apple iOS Application.

(vii). Third-Party Beneficiary:  The parties acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of these Terms, and that, upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary thereof).

(vii).  Warranty:  You acknowledge that Apple is not responsible for any product warranties, whether express or implied by law, with respect to the App.  In the event of any failure of the App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price, if any, paid to Apple for the App by you; and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App.  The parties acknowledge that to the extent that there are any applicable warranties, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any such applicable warranty would be the sole responsibility of Boomerang.  However, you understand and agree that in accordance with these Terms, Boomerang has disclaimed all warranties of any kind with respect to the App, and therefore, there are no warranties applicable to the App.

 

c. The following applies to any Application accessed through or downloaded from the Google Play Store ("Google-Sourced Application"): (i) you acknowledge that these Terms are between you and Boomerang only, and not with Google, Inc. ("Google"); (ii) your use of Google-Sourced Application must comply with Google's then-current Google Play Store Terms of Service; (iii) Google is only a provider of the Google Play Store where you obtained the Google-Sourced Application; (iv) Boomerang, and not Google, is solely responsible for its Google-Sourced Application; (v) Google has no obligation or liability to you with respect to Google-Sourced Application or these Terms; and (vi) you acknowledge and agree that Google is a third-party beneficiary to these Terms as it relates to Boomerang’s Google-Sourced Application.

 

d. Certain software code incorporated into or distributed with the Application may be licensed by third parties under various “open-source” or “public-source” software licenses (collectively, the “Open Source Software”). Notwithstanding anything to the contrary in these Terms, the Open Source Software is not licensed under Section 3(a) and instead is separately licensed pursuant to the terms and conditions of their respective open-source software licenses. You agree to comply with the terms and conditions of such open-source software license agreements.

 

e. As a marketplace Platform, we connect Drivers with Organizers. For the Platform to work, we need to collect your location information.It is used to help protect the safety of all Users or members of the public. Additionally, Drivers’ location information and distance travelled is necessary to calculate charges for rides and for insurance. When you open the Application on your mobile phone, we collect your location information in real-time.  By using the Application, you hereby authorize us to collect, use, and store your location data even when the Application is running in the background (for Drivers only). If you do not agree to permit us to collect this information on your mobile device, you may not use the Platform as such collection and use is necessary for the provision of Driver Services.

 

f. Certain features of the Platform require access to and use of your device's map features or functionality, such as Google Maps, or other third party services. Any use of those features will be subject to the terms and conditions applicable to such third party services. By using the Platform, and depending on your device’s operating system, you may also have to agree to the Google Maps end-user terms located at http://www.google.com/help/terms_maps.html (as may be changed from time to time by Google). It is your sole responsibility to review the terms and conditions that apply to Google Maps before using it; these Terms do not apply to any activities conducted via the Google Maps site. Likewise, by using the Platform, you may also agree to the Apple end-user terms located at http://www.apple.com/legal/sla/ (as may be changed from time to time by Apple). It is your sole responsibility to review the terms and conditions that apply to Apple mobile devices before using them.

 

g. You understand that the Boomerang Platform is evolving. As a result, Boomerang may require you to accept updates to the Application or other software that you have installed on your computer or mobile device. You acknowledge and agree that Boomerang may update the Application with or without notifying you. You may also need to update third party software from time to time in order to use the Platform or Application.

 

5. MOBILE AND ELECTRONIC COMMUNICATIONS

 

The Platform involves receiving alerts, acknowledgements, updates, offers, messages, and other information via your mobile device and/or email.  By entering into these Terms or using the Platform, you agree to receive communications from us, including texts, calls or prerecorded messages may be generated by automated telephone dialing systems. Communications from Boomerang and other Users, including Drivers and Organizers, may include but are not limited to: improving or using the Platform, operational communications concerning your account or the Driver Services you provide or receive, updates concerning new and existing features relating to the Platform, communications concerning promotions run by us or our third-party partners, and news concerning Boomerang. We do not charge for this feature. However, any standard text messaging charges applied by your cell phone carrier will apply to text messages we send.

IF YOU WISH TO OPT OUT OF PROMOTIONAL EMAILS, YOU CAN UNSUBSCRIBE FROM OUR PROMOTIONAL EMAIL LIST BY FOLLOWING THE UNSUBSCRIBE OPTIONS IN THE PROMOTIONAL EMAIL ITSELF. IF YOU WISH TO OPT OUT OF PROMOTIONAL CALLS OR TEXTS, YOU MAY REPLY “STOP” TO A BOOMERANG TEXT MESSAGE FROM THE MOBILE DEVICE RECEIVING THE MESSAGES. YOU ACKNOWLEDGE THAT YOU ARE NOT REQUIRED TO CONSENT TO RECEIVE PROMOTIONAL TEXTS OR CALLS AS A CONDITION OF USING THE SERVICES OR THE SERVICES.

 

IF YOU WISH TO OPT OUT OF ALL TEXTS OR CALLS FROM BOOMERANG (INCLUDING OPERATIONAL OR TRANSACTIONAL TEXTS OR CALLS), YOU CAN REPLY “STOPALL” TO A BOOMERANG TEXT MESSAGE FROM THE MOBILE DEVICE RECEIVING THE MESSAGES, HOWEVER YOU ACKNOWLEDGE THAT BY OPTING OUT OF RECEIVING ALL CALLS OR TEXTS YOU WILL NO LONGER BE ABLE TO USE THE SERVICES, AS SUCH COMMUNICATIONS ARE NECESSARY FOR PROVIDING THE SERVICES. WE WILL NOT BE LIABLE FOR ANY DELAYS IN THE RECEIPT OF ANY SMS MESSAGES AS DELIVERY IS SUBJECT TO EFFECTIVE TRANSMISSION FROM YOUR MOBILE SERVICE OPERATOR.

 

6. INTELLECTUAL PROPERTY

a. The services and the text, software (including, without limitation, the Boomerang Application and website), graphics, images, photographs, videos, illustrations, trademarks, trade names, service marks, logos, slogans and other content contained therein (collectively, the “Boomerang Content”; our trademarks, trade names, service marks, logos and slogans may be collectively referred to herein as the “Boomerang Marks”) are owned by or licensed to Boomerang and are protected under both United States and foreign laws.  Except for User Content (defined below) and third party content.  Boomerang only grants to you a limited license to reproduce portions of the Boomerang Platform for your internal use.

 

b. If you are a Driver, Boomerang grants to you, during the term of this Agreement, and subject to your compliance with the terms and conditions of this Agreement and any other agreement entered into between you and Boomerang, a limited, non-exclusive and revocable license to display the Boomerang Marks on your vehicle and to wear clothing displaying the Boomerang Marks while you are performing services as a Driver, provided all displayed materials are obtained directly from Boomerang and use in such manner as may be acceptable to Boomerang. This limited license does not allow for the creation of derivative or modified versions of the Boomerang Marks, or the use of the Boomerang Marks for any purpose other than as set forth in this paragraph.

 

c. In addition to the limitations set forth elsewhere in these Terms, the rights granted to you by these Terms are also subject to the following restrictions: (i) you shall not license, sublicense, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Boomerang Platform or any portion of the Boomerang Platform; (ii) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other aspect of the Boomerang Platform, including without limitation any portion of the Boomerang website; (iii) you shall not use any metatags or other “hidden text” using Boomerang’s name or trademarks; (iv) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Boomerang Platform except to the extent the foregoing restrictions are expressly prohibited by applicable law; (v) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Boomerang Application or website (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Boomerang Application or website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (vi) you shall not access the Boomerang Platform in order to build a similar or competitive website, application or service; (vii) except as expressly stated herein, no part of the Boomerang Platform may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (viii) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in any feature of the Boomerang Platform. Any future release, update or other addition to the Boomerang Platform shall be subject to these Terms. Boomerang, its suppliers and service providers reserve all rights not granted in these Terms. Any unauthorized use of the Boomerang Platform automatically terminates the licenses granted by Boomerang pursuant to these Terms.

 

d. In the event of any proven breach by you of any provision of this Section, you agree that Boomerang will be irreparably harmed as a matter of law and will be entitled to immediate temporary and permanent injunctive relief against you prohibiting any continued use by you of the Boomerang Platform (including, without limitation, the Boomerang Marks).

 

7. PROHIBITED USES

You agree not to violate or infringe upon any applicable law, contract, intellectual property or other third-party right or commit a tort in connection with your use of the Platform and you are solely responsible for your conduct while accessing or using our Service.

You agree not to use, or direct others to use, the Boomerang Platform or Driver Services in any manner that is prohibited by these Terms, including (without limitation) any manner that:

 

a. discriminates against or harass anyone on the basis of race, national origin, religion, gender, gender identity, physical or mental disability, medical condition, marital status, age or sexual orientation, or any other characteristic protected by law;

 

b. causes any harm or injury to any person, including Riders;

 

c. is harassing, intimidating, threatening, predatory, violent or stalking conduct;

 

d. violates Boomerang’s Zero Tolerance Policy, found here;

 

e. uses or attempts to use another User’s account without authorization from that User and Boomerang or arrange or attempt to arrange rides for any Rider for whom you are not authorized to do so;

 

f. impersonates any person or entity, including (without limitation) any employee or representative of Boomerang, and other Drivers or Organizers;

 

g. interferes with or attempts to interfere with the proper functioning of the Boomerang Platform, or in any way not expressly permitted by these Terms; or

 

h. engages or attempts to engage in any potentially harmful acts that are directed against Boomerang, including but not limited to violating or attempting to violate any security features of the Boomerang Platform, using manual or automated software or other means to access, “scrape,” “crawl” or “spider” any pages created or maintained by Boomerang, introducing viruses, worms, or similar harmful code, or interfering or attempting to interfere with use of the Boomerang Platform or Driver Services by any other User, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing,” or “crashing” the Boomerang Platform.

 

i. involves commercial activities and/or sales without Boomerang’s prior written consent, such as (without limitation) contests, sweepstakes, barter, advertising, or pyramid schemes;

 

j. uses our Platform for any illegal or unauthorized purpose, or to engage in, encourage or promote any activity that violates these Terms.

You may also only post or otherwise share User Content that is non-confidential and that which you have all necessary rights to disclose.  You may not create, post, store or share any User Content that:

 

a. is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, false, misleading, invasive of privacy or publicity rights, abusive, inflammatory or fraudulent;

 

b. contains any private or personal information of a third party without such third party’s consent including, without limitation, addresses, phone numbers and email addresses;

 

c. contains or depicts any statements, remarks or claims that do not reflect your honest views and experiences;

 

d. Is, in our sole judgement, objectionable or that restricts or inhibits any other person from using or enjoying our Service, or that may expose Boomerang or others to any harm or liability of any type.

 

e. may infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right 

of any party;

 

f. contains any unsolicited promotions, political campaigning, advertising or solicitations.

 

In addition, although we have no obligation to screen, edit or monitor User Content, we may delete or remove User Content at any time and for any reason.

 

8. USER CONTENT

The Boomerang Platform may enable you to post, upload, e-mail, transmit or otherwise make available, your own content, information, data or materials (“User Content”). User Content is the sole responsibility of the party from whom such User Content originated. You grant Boomerang a perpetual, irrevocable, nonexclusive, royalty-free, worldwide, fully-paid, and sublicensable license to display, publicly perform, distribute, store, transcode, broadcast, transmit, reproduce, edit, adapt, create derivative works, and otherwise use and exploit your User Content, and any name, username or likeness provided in connection with your User Content in any manner, in any medium, for any purpose in connection with the Boomerang Platform, website or Application. You acknowledge and agree that you have no expectation of compensation, privacy, or confidentiality with respect to any User Content. User Content may be available to other Users (such as Drivers and Organizers). We may refuse or remove User Content at any time. You represent and warrant that you own all rights in your User Content or you have acquired all necessary rights in your User Content to enable you to grant Boomerang the rights in your User Content described above. 

 

You may not upload, post, store, share or otherwise use any User Content that violates these Terms, that infringes or violates the rights of any third party, or for which you do not have all the rights necessary to grant us the license described above.  Although we have no obligation to screen, edit or monitor Use Content, we reserve the right in our sole discretion to pre-screen, refuse and/or remove such content.

 

9. FEEDBACK

Boomerang is continually looking to improve its Platform and encourages Users to provide feedback about their experience using the Platform and the Driver Services that Users provide or arrange for through the Application or website. All Users consent to feedback from other Users. Feedback on Drivers may be shared with Drivers and may be used for any purpose without attribution, accounting or compensation to you. 

 

10. THIRD PARTY WEBSITES AND SERVICE PROVIDERS

As a part of the Boomerang Platform, you may have access to materials that are hosted by another party (including the maps referenced above in Section 4(g)). You agree that it is impossible for Boomerang to monitor such materials and that you access these materials at your own risk. The Boomerang Platform may provide information from and links to third party websites and applications (“Third Party Websites”) and advertisements for third parties (collectively, “Third Party Websites & Ads”). When you click on a link to any Third Party Websites & Ads, we will not warn you that you have left our website or Application and are subject to the terms and conditions (including privacy policies) of another website, application or destination. Such Third Party Websites are not under the control of Boomerang. Boomerang is not responsible for any Third Party Websites & Ads. Boomerang provides these Third Party Websites & Ads only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third Party Websites & Ads, or their products or services. You use all links in Third Party Websites & Ads at your own risk. When you leave our website or Application, our Terms no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third Party Websites, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.

 

11. DISCLAIMERS

YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO, THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE BOOMERANG PLATFORM, INCLUDING (WITHOUT LIMITATION) ANY SERVICES PROVIDED BY INDEPENDENT CONTRACTOR DRIVERS, IS AT YOUR SOLE RISK, AND THE BOOMERANG PLATFORM IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS, WHETHER KNOWN OR UNKNOWN. BOOMERANG AND ITS MEMBERS, MANAGERS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, AND LICENSORS (COLLECTIVELY, THE “COVERED PARTIES”) DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED (INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE AND NON-INFRINGEMENT). THIS PROVISION ALSO APPLIES TO, WITHOUT LIMITATION, ANY BOOSTER SEATS THAT MAY BE PROVIDED BY BOOMERANG OR DRIVERS OR THE INSTALLATION OF SUCH BOOSTER SEATS BY DRIVERS OR OTHERS. THE COVERED PARTIES MAKE NO REPRESENTATIONS OR WARRANTIES REGARDING THE ACCURACY OR COMPLETENESS OF CONTENT AVAILABLE ON OR THROUGH THE BOOMERANG PLATFORM OR FOR THE CONDUCT OR PERFORMANCE OF ANY DRIVERS, ORGANIZERS, RIDERS OR OTHER USERS.

 

USERS ARE NOT COVERED PARTIES WITHIN THE MEANING OF THESE TERMS. WE DO NOT CONTROL, OR HAVE THE RIGHT TO CONTROL USERS EXCEPT TO THE EXTENT EXPRESSLY SET FORTH IN THESE OR ANY APPLICABLE SUPPLEMENTAL TERMS OR AS REQUIRED BY APPLICABLE STATE AND/OR FEDERAL LAW, REGULATION, OR ORDINANCE. BOOMERANG WILL NOT BE OBLIGATED TO PARTICIPATE IN DISPUTES BETWEEN YOU AND A DRIVER OR ANY OTHER USER.  

 

WE ARE NOT RESPONSIBLE FOR THE AVAILABILITY OR PERFORMANCE OF SERVICES PROVIDED BY DRIVERS. WE DO NOT GUARANTEE ORGANIZERS THAT ANY RIDE REQUEST WILL BE ACCEPTED BY DRIVERS OR THAT DRIVERS WILL RECEIVE ANY PARTICULAR NUMBER OF RIDE REQUESTS BY ORGANIZERS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE COVERED PARTIES ARE NOT LIABLE FOR THE ACTS, ERRORS, OMISSIONS, REPRESENTATIONS, WARRANTIES, OR NEGLIGENCE OF ANY USERS OR FOR ANY PERSONAL INJURIES, DEATH, PROPERTY DAMAGE, OR OTHER DAMAGES OR EXPENSES RESULTING THEREFROM. WE DO NOT REPRESENT OR ENDORSE, AND SHALL NOT BE RESPONSIBLE FOR, YOUR ABILITY OR INABILITY TO ARRANGE FOR OR PROVIDE SERVICES USING THE BOOMERANG PLATFORM. BOOMERANG SHALL NOT BE LIABLE FOR ANY DELAY IN OR FAILURE TO PERFORM ANY SERVICES.

 

12. LIMITATION OF LIABILITY

YOU UNDERSTAND AND AGREE THAT IN NO EVENT WILL THE COVERED PARTIES BE LIABLE UNDER ANY THEORY OF LIABILITY (WHETHER IN CONTRACT, TORT, STATUTORY, OR OTHERWISE) FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING (WITHOUT LIMITATION) DAMAGES FOR LOSS OF REVENUES, PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF COVERED PARTIES WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM OR RELATING TO YOUR USE OF THE BOOMERANG PLATFORM OR SERVICES. WITHOUT LIMITING ANY OF THE FOREGOING, IN NO EVENT MAYTHE COVERED PARTIES’ TOTAL AGGREGATE LIABILITY TO YOU EXCEED THE GREATER OF: (I) THE TOTAL AMOUNT OF FEES WE RECEIVE FROM YOUR RIDE REQUESTS IN THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE EVENT GIVING RISE TO OUR LIABILITY, OR (II) ONE THOUSAND DOLLARS ($1000.00). THE FOREGOING LIMITATIONS OF LIABILITY SHALL NOT APPLY TO LIABILITY OF A COVERED PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A COVERED PARTY’S NEGLIGENCE, OR (B) ANY INJURY CAUSED BY A COVERED PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION. THE FOREGOING LIMITATIONS OF LIABILITY ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN BOOMERANG AND YOU.

 

13. INDEMNITY

You agree to indemnify and hold harmless the Covered Parties against any and all claims, damages, losses, costs, liabilities, and expenses or fees (including, without limitation, reasonable attorneys’ fees) of any kind relating, directly or indirectly, to or arising out of: (i) your use of the Boomerang Platform or Driver Services; (ii) your (or in the case of Organizers, your Riders’) violation or breach of any provision of these Terms, Boomerang Rules of the Road or any applicable law or regulation, whether or not referenced herein; (iii) your violation of any rights of any third party; (iv) your use of, or inability to use, the Boomerang Platform to arrange for or provide Driver Services, or for any reason. Boomerang reserves the right, in its sole discretion and expense, to assume the exclusive defense of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Boomerang in asserting any available defenses. This provision does not require you to indemnify any of the Covered Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Boomerang Platform. You agree that the provisions in this section will survive termination of your user account, these Terms, or your access to the Boomerang Platform.

 

14. STATE/LOCATION-SPECIFIC TERMS AND DISCLOSURES

SOUTH DAKOTA

Disclosures to Drivers:

  1. The insurance coverage, including the types of coverage and the limits for each coverage, that Boomerang provides while you use a personal vehicle in connection with Boomerang’s digital network may be found here.

  2. Your own motor vehicle insurance policy might not provide any coverage while you are logged on to Boomerang’s digital network and available to receive transportation requests or are engaged in a prearranged ride, depending on its terms.

  3. It is your sole and exclusive responsibility to notify your insurance provider that you will be providing transportation network company services and determine your individual coverage information.

  4. If the vehicle that you plan to use to provide transportation services has a lien against it, you must notify the lienholder that you will be using the vehicle for transportation services that may violate the terms of your contract with the lienholder.

 

Disclosures to Organizers and Riders:

Boomerang charges its Users a fare in exchange for its transportation services. The calculation method Boomerang uses to ascertain that fare can be found here.

 

15. TERMINATION; MODIFICATION OF DISCONTINUANCE OF SERVICE

In the event of your breach of any term or condition of these Terms (and/or any other applicable agreements, terms, rules or guidelines that are now or hereafter applicable to the Platform and/or your use thereof), We reserve the right, without notice and in our sole discretion, to terminate your right to access or use the Service.  Without limiting the foregoing, if your breach is cured in a timely manner and to Boomerang’s satisfaction, we may (in our discretion) elect to not permanently deactivate your account. You may not use the Boomerang Platform after your account has been deactivated unless expressly authorized by Boomerang. Sections 2, 4(f), 5, 6, 8, 11-13, 15 and 17-19 shall survive any termination or expiration of the Terms.

 

We also reserve the right to modify, suspend or discontinue the Service or any features or functionality thereof at any time without notice and without obligation or liability to you.  We are not responsible for any loss or harm related to your inability to access or use our Service.

 

16. SEVERABILITY

If any provision or part of a provision of these Terms is unlawful, void or unenforceable, that provision or part of the provision is deemed severable from these Terms and does not affect the validity and enforceability of any remaining provisions.

 

17. DISPUTE RESOLUTION

PLEASE READ THE FOLLOWING SECTION CAREFULLY. IT REQUIRES YOU TO ARBITRATE DISPUTES WITH BOOMERANG AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF. THIS SECTION 17 OF THESE TERMS SHALL BE REFERRED TO AS THE “ARBITRATION AGREEMENT.”

 

a. Agreement to Binding Arbitration Between You and Boomerang.

 

YOU AND BOOMERANG MUTUALLY AGREE TO WAIVE THE RIGHT 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. The Arbitration Agreement is governed by the Federal Arbitration Act (“FAA”) and survives after the Terms terminate or your relationship with Boomerang ends. ANY ARBITRATION UNDER THIS ARBITRATION AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED. Except as expressly provided in subsection (f) below, this Arbitration Agreement applies to all Claims (defined below) between you and Boomerang, including our affiliates, subsidiaries, parents, successors and assigns, and each of our respective members, managers, officers, directors, employees, agents, or shareholders. This Arbitration Agreement also applies to claims between you and Boomerang’s service providers, including (without limitation) background check providers and payment processors; and such service providers shall be considered intended third-party beneficiaries of this Arbitration Agreement.

Except as expressly provided in subsection (f) below, ALL DISPUTES AND CLAIMS BETWEEN YOU AND US (EACH A “CLAIM” AND COLLECTIVELY, “CLAIMS”) SHALL BE EXCLUSIVELY RESOLVED BY BINDING ARBITRATION SOLELY BETWEEN YOU AND BOOMERANG. These 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: the Terms and prior versions thereof (including the breach, termination, enforcement, interpretation or validity thereof), the Boomerang Platform, the Services, any other goods or services made available through the Boomerang Platform, your relationship with Boomerang, the threatened or actual suspension, deactivation or termination of your User account or the Terms, background checks performed by or on Boomerang’s behalf, drug or alcohol testing, payments made by you or any payments made or allegedly owed to you, any promotions or offers made by Boomerang, 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, 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 Boomerang 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 ARBITRATION, YOU UNDERSTAND THAT YOU AND BOOMERANG ARE WAIVING THE RIGHT TO SUE IN COURT OR HAVE A JURY TRIAL FOR ALL CLAIMS, EXCEPT AS EXPRESSLY OTHERWISE PROVIDED IN THIS ARBITRATION AGREEMENT. This Arbitration Agreement is intended to require arbitration of every claim or dispute that can lawfully be arbitrated, except for those claims and disputes which by the terms of this Arbitration Agreement are expressly excluded from the requirement to arbitrate.

 

b. Prohibition of Class Actions and Non-Individualized Relief.

 

YOU UNDERSTAND AND AGREE THAT YOU AND BOOMERANG MAY EACH BRING CLAIMS IN ARBITRATION 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 BOOMERANG 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 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. 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.

 

Notwithstanding any other provision of the Terms, this Arbitration Agreement or the AAA Rules (defined below), disputes regarding the scope, applicability, enforceability, revocability or validity of the Class Action Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. In any case in which: (i) the dispute is filed as a class, collective, or representative action, and (ii) there is a final judicial determination that the Class Action Waiver is unenforceable as to any Claims, then those Claims shall be severed from any remaining claims and may be brought 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.

c. Rules Governing the Arbitration.

 

Any arbitration conducted pursuant to this Arbitration Agreement shall be administered by the American Arbitration Association (“AAA”) pursuant to its applicable Rules & Procedures (“AAA Rules”) that are in effect at the time the arbitration is initiated, as modified by the terms set forth in this Arbitration Agreement. Copies of the AAA Rules can be obtained at the AAA’s website (https://www.adr.org/Rules) or by calling the AAA at 800-778-7879. Notwithstanding the foregoing, if requested by you and if proper based on the facts and circumstances of the Claims presented, the arbitrator shall have the discretion to select a different set of AAA Rules, but in no event shall the arbitrator consolidate more than one person’s Claims, or otherwise preside over any form of representative, collective, or class proceeding. The Parties may select a different arbitration administrator upon mutual written agreement.

 

As part of the arbitration, both you and Boomerang 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 Riders or Drivers, but is bound by rulings in prior arbitrations involving the same Rider or Driver 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.

 

d. 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. Subject to Subsection 3, below, the party initiating arbitration shall be responsible for paying all filing fees.

  2. Except as otherwise required by applicable law, and subject to Subsection 3, immediately below, 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.).

  3. At the end of any arbitration, the arbitrator may award reasonable attorneys’ fees and costs or any portion thereof to the prevailing party.

 

e. Location and Manner of Arbitration.

Unless you and Boomerang agree otherwise in writing, any and all arbitration hearings between Boomerang and you will take place within the City of Sioux Falls, South Dakota.

 

f. 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) claims for workers’ compensation, state disability insurance, and unemployment insurance benefits; and (iii) 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.

 

g. Severability.

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 this Arbitration Agreement shall be given full force and effect.

 

h. Driver Claims in Pending Settlement.

If you are a member of a putative class in a class or representative action lawsuit against Boomerang involving 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 Driver Claims in that particular class action. Instead, your 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.

 

i. Optional Pre-Arbitration Negotiation Process.

Before initiating any arbitration or proceeding, you and Boomerang 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 Boomerang. 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.

 

18. GENERAL

Except as provided in Section 17, any enforcement of or dispute relating to these Terms shall be governed by the laws of the State of South Dakota without regard to choice of law principles. This choice of law provision is only intended to specify the use of South Dakota law to interpret these Terms and is not intended to create any other substantive right to non-South Dakotans to assert claims under South Dakota 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 Boomerang, in our sole discretion by providing notice to you. Except as explicitly stated otherwise, any notices to Boomerang shall be given by certified mail, postage prepaid and return receipt requested to Boomerang LLC, 2301 S Potomac Circle Sioux Falls, SD 57106. Any notices to you shall be provided to you through the Boomerang Platform or given to you via the email address or physical address you provide to Boomerang when you create or update your account. The failure of Boomerang to exercise or enforce any right or provision of these Terms will not operate as a waiver of such right or provision. These Terms (together with any written agreement executed by you and Boomerang with respect to the Servicers, and all policies, agreements, pages and other documents referred to herein) constitute the entire agreement between you and Boomerang regarding your access to and use of the Boomerang Platform and all other subject matter hereof, and supersedes all previous understandings and agreements between the parties, whether oral or written.  The section titles in these Terms are for convenience only and have no legal or contractual effect.  Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and not intended to confer third party beneficiary rights upon any other person or entity.

 

19. DRIVER SUPPLEMENTAL TERMS

By using the Boomerang Platform to provide Driver Services as a Driver, you acknowledge, represent, warrant, and agree that:

a. You are an independent provider of caregiving and/or transportation services. You use the Boomerang Platform in order to advertise and connect with other Users who wish to arrange for your Driver Services, and you provide Driver Services to other Users of the Platform solely on behalf of yourself and your own independently established business, not on behalf of Boomerang. The relationship between you and Boomerang under these Terms is solely that of independent contracting parties. You and Boomerang expressly agree that (i) this is not an employment agreement and does not create an employment relationship between you and Boomerang, and (ii) no joint venture, franchisor- franchisee, partnership, or agency relationship is intended or created by these Terms. You have no authority to bind Boomerang, and you undertake to not hold yourself out as an employee, agent, partner, joint venturer or authorized representative of Boomerang.

b. Boomerang does not, and shall not be deemed to, direct or control you generally or in your performance under these Terms specifically, including (without limitation) in connection with your provision of Driver Services, your acts or omissions, or your selection, operation and maintenance of your vehicle. You retain the sole right to determine when, where, and for how long you will utilize the Boomerang Platform. You retain the option to accept or to decline or ignore an Organizer’s request for Driver Services via the Boomerang Platform (subject to limitations provided by applicable law), or to cancel an accepted request for Driver Services via the Boomerang Platform, subject to Boomerang’s then-current cancellation policies and applicable law. You determine the rate for your Driver Services when using the Boomerang 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, Boomerang does not require you to: (i) display Boomerang’s names, logos or colors on your vehicle(s); or, (ii) wear a uniform or any other clothing displaying Boomerang’s names, logos or colors. You acknowledge and agree that you have complete discretion to provide Driver Services or otherwise engage in other business or employment activities.

d. You have and will at all times maintain a valid driver’s license and all other required licenses, certifications, permits, approvals and authority to provide independent transportation and caregiving services to third parties in all jurisdictions in which you operate as a Driver using the Boomerang Platform. You must provide written copies of all required licenses, permits and other documentation necessary to establish your ability to operate as a Driver.

 

e. You have and can provide 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 Driver Services, and will maintain such insurance at all times.

 

f. You own, or have the legal right to operate, the vehicle you use when providing Driver 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 Driver Services using the vehicle that has been reported to and approved by Boomerang. 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 Driver Services. You acknowledge that Boomerang’s approval of your vehicle does not constitute any representation, warranty or guarantee on the part of Boomerang that your vehicle is safe, mechanically sound, in compliance with applicable laws or rules, or otherwise suitable for the purpose of providing Driver Services.  Instead, the assurance of all such matters is and shall remain your responsibility.  

 

h. Boomerang will provide limited liability insurance covering you and passengers during rides that are part of the Driver Services.  However, Drivers are otherwise responsible for insurance for the vehicle they use to provide the Driver Services.

 

i. You will not attempt to defraud Boomerang, Users, or any other third party on the Boomerang Platform or in connection with your provision of Driver 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.

 

j. You agree that we may obtain information about your background on a continuous and ongoing basis, including (without limitation) 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.

 

k. By accepting a ride request, you are entering into an agreement with the Organizer 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 Organizer.

 

l. You must be able to provide satisfactory verification of your identity to the Organizer as the Driver that was matched with the Rider. Unless required by law, regulation, or ordinance, you are not required to wear a Boomerang t-shirt or other Boomerang-branded apparel, but such items are available to you through Boomerang. 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 Boomerang Platform to provide services if you are not actually using the Platform at the time services are provided.

 

m. You must be able to communicate with Boomerang (including its representatives and agents) and Organizers and Riders to whom you provide Driver Services.

 

n. 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 Driver Services. In addition, you must ensure that each vehicle you use to provide Driver Services complies with all applicable laws and rules concerning vehicle equipment.  You will not engage in reckless or unsafe 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 Driver Services, provide Driver Services as a 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, Boomerang community, or third-parties. More information regarding restricted activity can be found in the Zero Tolerance Policy here.

 

o. By agreeing to these Terms, you acknowledge and voluntarily consent to abide by any applicable drug and alcohol testing.

 

p. You must have a current and working cell phone number on your account at all times.

 

q. You must install and use a car seat or booster as required by law. From time to time, you may receive requests from Organizers to install car seats or boosters when not required by law.

 

r. 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.

 

s. You are responsible for maintaining any business licenses or certifications required by law, ordinance, or regulation.

 

t. You will make reasonable accommodation for Riders and/or for service and support animals, as required by law and our Service and Support Animal Policy.

 

u. By using the Platform to offer and provide Driver Services, you consent to and hereby authorize Boomerang 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.

 

v. You will pay all applicable federal, state and local taxes based on your provision of Driver Services and any payments received by you.

 

20. PRICING AND PAYMENT TERMS

Boomerang does not pay Drivers for Driver Services that Drivers provide while using the Boomerang Platform. As an Organizer, you understand that Drivers provide Driver Services directly to you and that your request or use of Driver Services may result in charges to you (“Charges”). Charges include all applicable fees, surcharges, and taxes as set forth in the Pricing and Payment Terms.  You agree to pay and hereby authorize Boomerang 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 Driver a tip/gratuity. 

 

Boomerang has the authority and reserves the right to determine and modify pricing by 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 Driver, you will receive payments from Organizers for your Driver Services subject to the Pricing and Payment Terms. Boomerang will collect payments owed to you by Organizers as your limited collection agent and you agree that receipt of such payments by Boomerang satisfies the payer’s obligation to you. Boomerang 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 Boomerang Platform.

 

21. PROMOTIONS

From time to time, we may elect to run or 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.

 

 

 

 

If you have any questions regarding the Boomerang Platform or Driver Services, please contact our Customer Support Team through email at support@boomerangrides.com or by phone at (605) 777-4766.