This Technology Services Agreement (“Agreement”) constitutes a legal agreement between you, an individual (“you”) and Bongеni Ltd, a limited liability Bongéni having its offices at Royal Road, Haute Rive, Riviere du Rempart, Mauritius, registered at the Mauritius Registrar of Companies under number 169126 (“Bongéni”).
Bongéni provides lead generation to independent providers of transportation, moving and logistics services (collectively, “logistics services”) using the Bongéni Services (as defined below). The Bongéni Services enable an authorised logistic services provider (also referred as Bongéni Driving Partner) to seek, receive and fulfil requests for logistics services from an authorised user of Bongéni’s mobile applications. You desire to enter into this Agreement for the purpose of accessing and using the Bongéni Services.
You acknowledge and agree that Bongéni is a technology services provider that does not provide transportation, moving or logistics services.
In order to use the Bongéni Services, you must agree to the terms and conditions that are set forth below. Upon your execution (electronic or otherwise) of this Agreement by (1) clicking a box indicating acceptance or (2) executing an order form that references these terms, you and Bongéni shall be bound by the terms and conditions set forth herein.
“Bongéni Data” means all data related to the access and use of the Bongéni Services hereunder, including all data related to Users (including User Information), all data related to the provision of Logistics Services via the Bongéni Services and the Driver App.
“Driver App” means the mobile application provided by Bongéni that enables transportation, moving and logistics providers to access the Bongéni Services for the purpose of seeking, receiving and fulfilling on-demand requests for logistic services by Users, as may be updated or modified from time to time.
“Driver ID” means the identification and password key assigned by Bongéni to you that enables you to use and access the Driver App.
“Fare” has the meaning set forth in Section 4.1.
“Service Fee” has the meaning set forth in Section 4.4.
“Logistics Services” means your provision of transportation, moving and logistics services to Users via the Bongéni Services in Mauritius using the Vehicle.
“Bongéni Services” mean Bongéni’s on-demand lead generation and related services that enable transportation, moving and logistics providers to seek, receive and fulfil on-demand requests for Logistics Services by Users seeking Logistics Services; such Bongéni Services include access to the Driver App and Bongéni’s software, websites, payment services as described in Section 4 below, and related support services systems, as may be updated or modified from time to time.
“User” means an end user authorised by Bongéni to use the Bongéni mobile application for the purpose of obtaining Logistics Services offered by Bongéni’s independent transportation provider customers.
“User Information” means information about a User made available to you in connection with such User’s request for and use of Logistics Services, which may include the User’s name, pick-up location, contact information and photo.
“Vehicle” means your vehicle that: (a) meets the then-current Bongéni requirements for a vehicle on the Bongéni Services; and (b) Bongéni authorises for your use for the purpose of providing Logistics Services.
“Your Device” means a mobile device owned or controlled by you: (a) that meets the Bongéni specifications for mobile devices; and (b) on which the Driver App has been installed as authorised by Bongéni solely for the purpose of providing Logistics Services.
2. Use of the Bongéni Services
- Driver IDs. Bongéni will issue you a Driver ID to enable you to access and use the Driver App on a Device in accordance with this Agreement. Bongéni reserves the right to deactivate your Driver ID if you have not fulfilled a request for Logistics Services using the Driver App at least once a month. You agree that you will maintain your Driver ID in confidence and not share your Driver ID with any third party. You will immediately notify Bongéni of any actual or suspected breach or improper use or disclosure of your Driver ID or the Driver App.
- Provision of Logistics Services. When the Driver App is active, User requests for Logistics Services may appear to you via the Driver App if you are available and in the vicinity of the User. If you accept a User’s request for Logistics Services, the Bongéni Services will provide you with certain User Information via the Driver App, including the User’s first name, contact information, and load pickup and drop off locations. In order to enhance User satisfaction with the Bongéni mobile application and your Logistics Services, it is recommended that you wait at least fifteen (15) minutes for a User to show up at the requested pick-up location. You acknowledge and agree that once you have accepted a User’s request for Logistics Services, Bongéni’s mobile application may provide certain information about you to the User, including your first name, contact information, photo and location, and your Vehicle’s make and license plate number. You shall not contact any Users or use any User’s personal data for any reason other than for the purposes of fulfilling Logistics Services. As between Bongéni and you, you acknowledge and agree that: (a) you shall be solely responsible for determining the most effective, efficient and safe manner to perform each instance of Logistics Services; and (b) except for the Bongéni Services, you shall provide all necessary equipment, tools and other materials, at your own expense, necessary to perform Logistics Services.
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOU ARE SUBJECT TO A STRICT DUTY TO MAINTAIN THE ABSOLUTE CONFIDENTIALITY OF USERS PERSONAL INFORMATION AND YOU UNDERSTAND THAT ALL SUCH INFORMATION MUST NOT BE DISCLOSED TO ANY OTHER PERSON.
- Your Relationship with Users. You acknowledge and agree that your provision of Logistics Services to Users creates a direct business relationship between you and the User. Bongéni is not responsible or liable for the actions or inactions of a User in relation to you, your activities or your Vehicle. You shall have the sole responsibility for any obligations or liabilities to Users or third parties that arise from your provision of Logistics Services. You acknowledge and agree that you are solely responsible for taking such precautions as may be reasonable and proper (including maintaining adequate insurance that meets the requirements of all applicable laws including motor vehicle financial responsibility laws) regarding any acts or omissions of a User or third party. You acknowledge and agree that Bongéni may release your contact and/or insurance information to a User upon such User’s reasonable request. You acknowledge and agree that the load should be transported directly to their specified drop off destination, as specified in the User Request, without unauthorised interruption or unauthorised stops.
- Your Relationship with Bongéni. You acknowledge and agree that Bongéni’s provision to you of the Driver App and the Bongéni Services creates a direct business relationship between Bongéni and you. Bongéni does not, and shall not be deemed to, direct or control you generally or in your performance under this Agreement specifically, including in connection with your provision of Logistics Services, your acts or omissions, or your operation and maintenance of your Vehicle. You retain the sole right to determine when, where, and for how long you will utilise the Driver App or the Bongéni Services. You retain the option, via the Driver App, to attempt to accept or to decline or ignore a User’s request for Logistics Services via the Bongéni Services, or to cancel an accepted request for Logistics Services via the Driver App, subject to Bongéni’s then-current cancellation policies. You acknowledge and agree that you have complete discretion to provide services or otherwise engage in other business or employment activities. For the sake of clarity, you understand that you retain the complete right to; (i) use other software application services in addition to the Bongéni Services; and (ii) engage in any other occupation or business. Bongéni retains the right to deactivate or otherwise restrict you from accessing or using the Driver App or the Bongéni Services in the event of a violation or alleged violation of this Agreement, your disparagement of Bongéni or any of its Affiliates, your act or omission that causes harm to Bongéni’s or its Affiliates’ brand, reputation or business as determined by Bongéni in its sole discretion.
- You acknowledge and agree that: (a) after receiving Logistics Services, a User will be prompted by Bongéni’s mobile application to provide a rating of you and such Logistics Services and, optionally, to provide comments or feedback about you and such Logistics Services; and (b) after providing Logistics Services, you will be prompted by the Driver App to provide a rating of the User and, optionally, to provide comments or feedback about the User. You shall provide your ratings and feedback in good faith.
- You acknowledge that Bongéni desires that Users have access to high-quality services via Bongéni’s mobile application. In order to continue to receive access to the Driver App and the Bongéni Services, you must maintain an average rating by Users that exceeds the minimum average acceptable rating established by Bongéni, as may be updated from time to time by Bongéni in its sole discretion (“Minimum Average Rating”). Your average rating is intended to reflect Users’ satisfaction with your Logistics Services rather than your compliance with any of Bongéni’s policies or recommendations. In the event your average rating falls below the Minimum Average Rating, Bongéni will notify you and may provide you, in Bongéni’s discretion, a limited period of time to raise your average rating above the Minimum Average Rating. If you do not increase your average rating above the Minimum Average Rating within the time period allowed (if any), Bongéni reserves the right to deactivate your access to the Driver App and the Bongéni Services. Additionally, you acknowledge that your repeated failure to accept User requests for Logistics Services while you are logged in to the Driver App creates a negative experience for Users of Bongéni’s mobile application. If you do not wish to accept User requests for Logistics Services for a period of time, you agree that you will log off of the Driver App.
- Bongéni reserve the right to use, share and display your and User ratings and comments in any manner in connection with the business of Bongéni without attribution to you or your approval. You acknowledge and agree that Bongéni are distributors (without any obligation to verify) and not publishers of your and User ratings and comments, provided that Bongéni reserve the right to edit or remove comments in the event that such comments include obscenities or other objectionable content, include an individual’s name or other personal information, or violate any privacy laws, other applicable laws or Bongéni’s content policies.
- Devices. In relation to using Your Device in providing Logistics Services you acknowledge and agree that: (i) you are responsible for the acquisition, cost and maintenance of Your Devices as well as any necessary wireless data plan; and (ii) Bongéni shall make available the Driver App for installation on Your Device. Bongéni hereby grants you a personal, non-exclusive, non-transferable license to install and use the Driver App on Your Device solely for the purpose of providing Logistics Services. You agree to not provide, distribute or share, or enable the provision, distribution or sharing of, the Driver App (or any data associated therewith) with any third party. The foregoing license grant shall immediately terminate and you will delete and fully remove the Driver App from the Driver-Provided Device in the event that you cease to provide Logistics Services using Your Device. You agree that: (i) use of the Driver App on Your Device requires an active data plan with a wireless carrier associated with Your Device, which data plan will be provided by you at your own expense; and (ii) use of the Driver App on Your Device as an interface with the Bongéni Services may consume very large amounts of data through the data plan. BONGÉNI ADVISES THAT YOUR DEVICE ONLY BE USED UNDER A DATA PLAN WITH UNLIMITED OR VERY HIGH DATA USAGE LIMITS, AND BONGÉNI SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY FEES, COSTS, OR OVERAGE CHARGES ASSOCIATED WITH ANY DATA PLAN.
- Location Based Services. You acknowledge and agree that your geo-location information must be provided to the Bongéni Services via a Device in order to provide Logistics Services. You acknowledge and agree that: (a) your geo-location information may be obtained by the Bongéni Services while the Driver App is running; and (b) the approximate location of your Vehicle will be displayed to the User before and during the provision of Logistics Services to such User. In addition, Bongéni may monitor, track and share with third parties Driver’s geo-location information obtained by the Driver App and Device for safety and security purposes.
3. You and Your Vehicle
- Your Requirements. You acknowledge and agree that at all times, you shall: (a) hold and maintain (i) a valid driver's license with the appropriate level of certification to operate your Vehicle, and (ii) all licenses, permits, approvals and authority applicable to you that are necessary to provide Logistics Services to third parties in Mauritius; (b) possess the appropriate and current level of training, expertise and experience to provide Logistics Services in a professional manner with due skill, care and diligence; and (c) maintain high standards of professionalism, service and courtesy. You acknowledge and agree that you may be subject to certain background and driving record checks from time to time in order to qualify to provide, and remain eligible to provide, Logistics Services. You acknowledge and agree that Bongéni reserves the right, at any time in Bongéni’s sole discretion, to deactivate or otherwise restrict you from accessing or using the Driver App or the Bongéni Services if you fail to meet the requirements set forth in this Agreement.
- Vehicle Requirements. You acknowledge and agree that your Vehicle shall at all times be: (a) properly registered and licensed to operate as a transportation vehicle in Mauritius; (b) owned or leased by you, or otherwise in your lawful possession; (c) suitable for performing the Logistics Services contemplated by this Agreement; and (d) maintained in good operating condition, consistent with industry safety and maintenance standards for a Vehicle of its kind and any additional standards or requirements, and in a clean and sanitary condition, well maintained without material physical damage, and on the inside smoke and odour free.
Documentation. To ensure your compliance with all requirements in Sections 3.1 and 3.2 above, you may be requested to provide Bongéni with written copies of all such licenses, permits, approvals, authority, registrations and certifications prior to your provision of any Logistics Services. Thereafter, you will have submit to Bongéni written evidence of all such licenses, permits, approvals, authority, registrations and certifications as they are renewed. Bongéni shall, upon request, be entitled to review such licenses, permits, approvals, authority, registrations and certifications from time to time, and your failure to provide or maintain any of the foregoing shall constitute a material breach of this Agreement. Bongéni reserves the right to independently verify your documentation from time to time in any way Bongéni deems appropriate in its reasonable discretion.
4. Your Conduct
- While providing Services, you shall not participate in any activities that will take the focus off their assigned responsibilities or be under the influence of any illegal drugs and/or alcohol. You shall abide by all laws regarding talking or texting while driving. You shall not enter User’s home, unless expressly invited. You shall not solicit tips from User.
- You will not discriminate 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.
- You are required to visually inspect items before accepting the load for transportation and must take pictures of any visible damage. If a User doesn’t leave the packaging open, you always have the right to require User to open packaging to inspect items before accepting the load for transportation. You are allowed to cancel the order without penalty if a User does not allow inspection of the contents. If you fail to inspect the contents it is done at your own risk. You will be held liable for property damage that occurs between pick up and drop off if no evidence of prior damage exists.
- Prohibited Items. You are prohibited from knowingly accepting, picking-up, carrying or delivering any load containing the following “Prohibited Items”:
- Live animals.
- Anything illegal including, without limitation, recreational drugs and other contraband.
- Any Hazardous Material including, without limitation, ignitable, corrosive, explosive, flammable, radioactive, or highly reactive alone or with other materials, toxic, mutagenic, carcinogenic, or teratogenic to humans or other life forms or potentially harmful to the environment.
- Any Hazardous Waste, defined as a “solid waste” that meets any of the criteria of the hazardous waste.
- Unset precious stones, industrial diamonds, any article that contains more than fifty percent by weight of gold or platinum or any combination thereof in raw form, including, but not limited to, bullion, bars, or scraps of these metals.
- Cremated remains, human remains, fetal remains, human body parts, or components thereof.
- Cigarettes or any tobacco product, wine, beer or any other alcoholic beverages or any other regulated products.
- Firearms or weapons of any kind, any firearm or weapon parts, or ammunition in any amount.
- Replica or inert explosives or weapons that bear an appearance to actual explosives or weapons.
BONGÉNI HAS AND TAKES NO RESPONSIBILITY OR LIABILITY TO EITHER DRIVERS OR USERS FOR THE INCLUSION OF ANY PROHIBITED ITEMS IN ANY LOAD OR A DRIVER’S OR USER’S FAILURE TO COMPLY WITH ALL LAWS APPLICABLE TO IT.
Messaging. You agree that the Services may send you electronic mail and informational text (SMS) messages as part of the normal business operation of your use of the Services.
5. Financial Terms
- Appointment of Bongéni as Payment Agent. You hereby appoint Bongéni as your limited payment collection agent (“Payment Agent”) solely for the purpose of facilitating the receipt of payments from Users on your behalf for Services provided.
- You: (i) appoint Bongéni as your limited payment collection agent (“Payment Agent”) solely for the purpose of accepting the Fare from the User on your behalf via the payment processing functionality facilitated by the Bongéni Services; and (ii) agree that payment made by User to Bongéni shall be considered the same as payment made directly by User to you.
- You also authorise Bongéni in its role as Payment Agent to issue refunds to Users at your request.
- In accepting appointment as Payment Agent, Bongéni assumes no liability whatsoever for any of your acts or omissions related to these Terms of Service, failure by you to provide the Services in accordance with these Terms, or failure by Users to make payments owed to you, and you understand that Bongéni’s obligation to pay you is subject to and conditional upon Bongéni’s actual receipt of payment from Users.
- You represent and warrant that they have carefully read and understood these Terms of Service and accept them fully. Users’ payment obligations to you will be satisfied upon receipt of payment by Bongéni, and Bongéni will be responsible for remitting funds to you in the manner described in these Terms of Service. In the event that Bongéni does not remit any such amounts to you, you will have recourse for non-payment solely against Bongéni, and not Users.
- You agree that Bongéni may describe or otherwise reflect the terms contained herein in any terms of service, receipts, disclosures, or notices including, but not limited to, invoices provided to Users that Bongéni may deem necessary or prudent.
- For the avoidance of doubt, Bongéni does not and will not provide banking, deposit taking, stored value, insurance, payments system or any other financial services to you other than serving as a limited payment collection agent as set forth above.
- Fare Calculation and Your Payment. You are entitled to charge a fare for each instance of completed Logistics Services provided to a User that are obtained via the Bongéni Services (“Fare”), where such Fare is calculated by Bongéni algorithm (“Fare Calculation”) and is made available to you as part of a User request for Logistics Services via the Driver App. By accepting a User’s request for Logistics Services you expressly agree to the Fare.
- Changes to Fare Calculation. Bongéni reserves the right to change the Fare Calculation algorithm at any time in Bongéni’s discretion based upon local market factors.
- Fare Adjustment. Bongéni reserves the right to cancel the Fare for a particular instance of Logistics Services (e.g., User is charged for Logistics Services that were not provided, in the event of a User complaint, fraud, etc.). Bongéni’s decision to reduce or cancel the Fare in any such manner shall be exercised in a reasonable manner.
- Service Fee. In consideration of Bongéni’s provision of the Driver App and the Bongéni Services for your use and benefit hereunder, you agree to pay Bongéni a service fee on a per Logistics Services transaction basis calculated as a percentage of the Fare determined by the Fare Calculation. In the event regulations require taxes to be calculated on the Fare, Bongéni shall calculate the Service Fee based on the Fare net of such taxes. Bongéni reserves the right to change the Service Fee at any time in Bongéni’s discretion based upon local market factors.
- Remittance of funds. Bongéni (acting as your Payment Agent) will be responsible for remitting the Fares for completed Logistics Services accepted from the Users on your behalf via the payment processing functionality facilitated by the Bongéni Services, to the bank account indicated in your Driver-ID profile not later than the first banking day after completion of the calendar week when the corresponding Logistics Services were provided.
Depending on the payment method selected by the User at the time of booking, you may be required to accept full Fare payment in cash directly from the User. In this case you are required to pay the corresponding Service Fee to Bongéni bank account not later than the first banking day after completion of the calendar week when the corresponding Logistics Services were provided.
- Cancellation Charges. You acknowledge and agree that Users may elect to cancel requests for Logistics Services that have been accepted by you via the Driver App at any time prior to your arrival. In the event that a User cancels an accepted request for Logistics Services, Bongéni may charge the User a cancellation fee on your behalf. If charged, this cancellation fee shall be deemed the Fare for the cancelled Logistics Services for the purpose of remittance to you hereunder (“Cancellation Fee”).
- Invoices. As part of the Bongéni Services, Bongéni provides you a system for the delivery of invoices to Users for Logistics Services rendered. Upon your completion of Logistics Services for a User, Bongéni prepares an applicable invoice and issues such invoice to the User via email on your behalf. Such invoices are also provided to you via email or the online portal available to you through the Bongéni Services. Invoices include the breakdown of amounts charged to the User for Logistics Services and may include specific information about you, including your name and contact information, as well as a map of the route you took. Any corrections to a User’s invoice for Logistics Services must be submitted to Bongéni in writing within three (3) business days after the completion of such Logistics Services. Absent such a notice, Bongéni shall not be liable for any mistakes in or corrections to the invoice or for recalculation or disbursement of the Fare.
- No Additional Amounts. You acknowledge and agree that, for the mutual benefit of the parties, through advertising and marketing, Bongéni may seek to attract new Users to Bongéni and to increase existing Users’ use of Bongéni’s mobile application. You acknowledge and agree such advertising or marketing does not entitle you to any additional monetary amounts beyond the amounts expressly set forth in this Agreement.
- Taxes. You acknowledge and agree that you are required to: (a) complete all tax registration obligations and calculate and remit all tax liabilities related to your provision of Logistics Services as required by applicable law; and (b) provide Bongéni with all relevant tax information. You further acknowledge and agree that you are responsible for taxes on your own income arising from the performance of Logistics Services. Notwithstanding anything to the contrary in this Agreement, Bongéni may in its reasonable discretion based on applicable tax and regulatory considerations, collect and remit taxes resulting from your provision of Logistics Services and/or provide any of the relevant tax information you have provided pursuant to the foregoing requirements in this Section 4.8 directly to the applicable governmental tax authorities on your behalf or otherwise.
6. Proprietary Rights. License.
- License Grant. Subject to the terms and conditions of this Agreement, Bongéni hereby grants you a non-exclusive, non-transferable, non-sublicensable, non-assignable license, during the term of this Agreement, to use the Bongéni Services (including the Driver App on a Device) solely for the purpose of providing Logistics Services to Users and tracking resulting Fares and Fees. All rights not expressly granted to you are reserved by Bongéni, its Affiliates and their respective licensors.
- Restrictions. You shall not, and shall not allow any other party to: (a) license, sublicense, sell, resell, transfer, assign, distribute or otherwise provide or make available to any other party the Bongéni Services, Driver App or any Bongéni Device in any way; (b) modify or make derivative works based upon the Bongéni Services or Driver App; (c) improperly use the Bongéni Services or Driver App, including creating Internet “links” to any part of the Bongéni Services or Driver App, “framing” or “mirroring” any part of the Bongéni Services or Driver App on any other websites or systems, or “scraping” or otherwise improperly obtaining data from the Bongéni Services or Driver App; (d) reverse engineer, decompile, modify, or disassemble the Bongéni Services or Driver App, except as allowed under applicable law; or (e) send spam or otherwise duplicative or unsolicited messages. In addition, you shall not, and shall not allow any other party to, access or use the Bongéni Services or Driver App to: (i) design or develop a competitive or substantially similar product or service; (ii) copy or extract any features, functionality, or content thereof; (iii) launch or cause to be launched on or in connection with the Bongéni Services an automated program or script, including web spiders, crawlers, robots, indexers, bots, viruses or worms, or any program which may make multiple server requests per second, or unduly burden or hinder the operation and/or performance of the Bongéni Services; or (iv) attempt to gain unauthorised access to the Bongéni Services or its related systems or networks.
- Ownership. The Bongéni Services, Driver App and Bongéni Data, including all intellectual property rights therein, and the Bongéni Devices are and shall remain (as between you and Bongéni) the property of Bongéni, its Affiliates or their respective licensors. Neither this Agreement nor your use of the Bongéni Services, Driver App or Bongéni Data conveys or grants to you any rights in or related to the Bongéni Services, Driver App or Bongéni Data, except for the limited license granted above. Other than as specifically permitted by the Bongéni in connection with the Bongéni Services, you are not permitted to use or reference in any manner Bongéni’s, its Affiliates’, or their respective licensors’ Bongéni names, logos, products and service names, trademarks, service marks, trade dress, copyrights or other indicia of ownership, alone and in combination with other letters, punctuation, words, symbols and/or designs (the "Bongéni Marks and Names") for any commercial purposes. You agree that you will not try to register or otherwise use and/or claim ownership in any of the Bongéni Marks and Names, alone or in combination with other letters, punctuation, words, symbols and/or designs, or in any confusingly similar mark, name or title, for any goods and services.
- Each party acknowledges and agrees that in the performance of this Agreement it may have access to or may be exposed to, directly or indirectly, confidential information of the other party ("Confidential Information"). Confidential Information includes Bongéni Data, Driver IDs, User Information, and the transaction volume, marketing and business plans, business, financial, technical, operational and such other non-public information of each party (whether disclosed in writing or verbally) that such party designates as being proprietary or confidential or of which the other party should reasonably know that it should be treated as confidential.
- Each party acknowledges and agrees that: (a) all Confidential Information shall remain the exclusive property of the disclosing party; (b) it shall not use Confidential Information of the other party for any purpose except in furtherance of this Agreement; (c) it shall not disclose Confidential Information of the other party to any third party, except to its employees, officers, contractors, agents and service providers ("Permitted Persons") as necessary to perform under this Agreement, provided Permitted Persons are bound in writing to obligations of confidentiality and non-use of Confidential Information no less protective than the terms hereof; and (d) it shall return or destroy all Confidential Information of the disclosing party, upon the termination of this Agreement or at the request of the other party (subject to applicable law and, with respect to Bongéni, its internal record-keeping requirements).
- Notwithstanding the foregoing, Confidential Information shall not include any information to the extent it: (a) is or becomes part of the public domain through no act or omission on the part of the receiving party; (b) was possessed by the receiving party prior to the date of this Agreement without an obligation of confidentiality; (c) is disclosed to the receiving party by a third party having no obligation of confidentiality with respect thereto; or (d) is required to be disclosed pursuant to law, court order, subpoena or governmental authority, provided the receiving party notifies the disclosing party thereof and provides the disclosing party a reasonable opportunity to contest or limit such required disclosure.
- Disclosure of Your Information. Subject to applicable law, Bongéni may, but shall not be required to, provide to you, a User, an insurance company and/or relevant authorities and/or regulatory agencies any information (including personal information (e.g., information obtained about you through any background check) and any Bongéni Data) about you or any Logistics Services provided hereunder if: (a) there is a complaint, dispute or conflict, including an accident, between you and a User; (b) it is necessary to enforce the terms of this Agreement; (c) it is required, in Bongéni’s or any Affiliate’s sole discretion, by applicable law or regulatory requirements (e.g., Bongéni or its Affiliates receive a subpoena, warrant, or other legal process for information); (d) it is necessary, in Bongéni’s or any Affiliate’s sole discretion, to (1) protect the safety, rights, property or security of Bongéni or its Affiliates, the Bongéni Services or any third party; (2) to protect the safety of the public for any reason including the facilitation of insurance claims related to the Bongéni Services; (3) to detect, prevent or otherwise address fraud, security or technical issues; (4) to prevent or stop activity which Bongéni or any of its Affiliates, in their sole discretion, may consider to be, or to pose a risk of being, an illegal, unethical, or legally actionable activity); or (e) it is required or necessary, in Bongéni’s or any Affiliate’s sole discretion, for insurance or other purposes related to your ability to qualify, or remain qualified, to use the Bongéni Services. You understand that Bongéni may retain your personal data for legal, regulatory, safety and other necessary purposes after this Agreement is terminated.
- Bongéni may collect your personal data during the course of your application for, and use of, the Bongéni Services, or may obtain information about you from third parties. Such information may be stored, processed, transferred, and accessed by Bongéni, third parties, and service providers for business purposes, including for marketing, lead generation, service development and improvement, analytics, industry and market research, and such other purposes consistent with Bongéni’s and its Affiliates’ legitimate business needs. You expressly consent to such use of personal data.
- You agree to maintain during the term of this Agreement on all Vehicles operated by you under this Agreement automobile liability insurance that provides protection against bodily injury and property damage to third parties at levels of coverage that satisfy the minimum requirements to operate the Vehicle on the public roads within Mauritius. This coverage must also include any no-fault coverage required by law in Mauritius that may not be waived by an insured. You agree to provide Bongéni a copy of the insurance policy, policy declarations, proof of insurance identification card and proof of premium payment for the insurance policy required in this Section 8.1 upon request. Furthermore, you must provide Bongéni with written notice of cancellation of any insurance policy required by Bongéni. Bongéni shall have no right to control your selection or maintenance of your policy. You must be a named insured or individually rated driver, for which a premium is charged, on the insurance policy required in this section at all times.
- You agree to maintain during the term of this Agreement workers’ compensation insurance as required by all applicable laws in Mauritius. If permitted by applicable law, you may choose to insure yourself against industrial injuries by maintaining occupational accident insurance in place of workers’ compensation insurance. Furthermore, if permitted by applicable law, you may choose not to insure yourself against industrial injuries at all, but do so at your own risk.
- You understand and acknowledge that your personal automobile insurance policy may not afford liability, comprehensive, collision, medical payments, personal injury protection, uninsured motorist, underinsured motorist, or other coverage for the Logistics Services you provide pursuant to this Agreement. If you have any questions or concerns about the scope or applicability of your own insurance coverage, it is your responsibility, not that of Bongéni, to resolve them with your insurer(s).
10. Representations and Warranties. Disclaimers.
- By You. You hereby represent and warrant that: (a) you have full power and authority to enter into this Agreement and perform your obligations hereunder; (b) you have not entered into, and during the term will not enter into, any agreement that would prevent you from complying with this Agreement; and (c) you will comply with all applicable laws in your performance of this Agreement, including holding and complying with all permits, licenses, registrations and other governmental authorizations necessary to provide (i) Logistics Services using the Vehicles pursuant to this Agreement, and (ii) Logistics Services to third parties in Mauritius generally.
- Disclaimer of Warranties. BONGÉNI PROVIDE, AND YOU ACCEPT, THE BONGÉNI SERVICES, DRIVER APP AND THE BONGÉNI DEVICES ON AN "AS IS" AND "AS AVAILABLE" BASIS. BONGÉNI DO NOT REPRESENT, WARRANT OR GUARANTEE THAT YOUR ACCESS TO OR USE OF THE BONGÉNI SERVICES, DRIVER APP OR THE BONGÉNI DEVICES: (A) WILL BE UNINTERRUPTED OR ERROR FREE; OR (B) WILL RESULT IN ANY REQUESTS FOR Logistics Services. BONGÉNI FUNCTION AS AN ON-DEMAND LEAD GENERATION AND RELATED SERVICE ONLY AND MAKE NO REPRESENTATIONS, WARRANTIES OR GUARANTEES AS TO THE ACTIONS OR INACTIONS OF THE USERS WHO MAY REQUEST OR RECEIVE Logistics Services FROM YOU, AND BONGÉNI DO NOT SCREEN OR OTHERWISE EVALUATE USERS. BY USING THE BONGÉNI SERVICES AND DRIVER APP, YOU ACKNOWLEDGE AND AGREE THAT YOU MAY BE INTRODUCED TO A THIRD PARTY THAT MAY POSE HARM OR RISK TO YOU OR OTHER THIRD PARTIES. YOU ARE ADVISED TO TAKE REASONABLE PRECAUTIONS WITH RESPECT TO INTERACTIONS WITH THIRD PARTIES ENCOUNTERED IN CONNECTION WITH THE USE OF THE BONGÉNI SERVICES OR DRIVER APP.NOTWITHSTANDING BONGÉNI’S APPOINTMENT AS THE LIMITED PAYMENT COLLECTION AGENT OF YOU FOR THE PURPOSE OF ACCEPTING PAYMENT FROM USERS ON YOUR BEHALF AS SET FORTH IN SECTION 4 ABOVE, BONGÉNI EXPRESSLY DISCLAIM ALL LIABILITY FOR ANY ACT OR OMISSION OF YOU, ANY USER OR OTHER THIRD PARTY.
- No Service Guarantee. BONGÉNI DO NOT GUARANTEE THE AVAILABILITY OR UPTIME OF THE BONGÉNI SERVICES OR DRIVER APP. YOU ACKNOWLEDGE AND AGREE THAT THE BONGÉNI SERVICES OR DRIVER APP MAY BE UNAVAILABLE AT ANY TIME AND FOR ANY REASON (e.g., DUE TO SCHEDULED MAINTENANCE OR NETWORK FAILURE). FURTHER, THE BONGÉNI SERVICES OR DRIVER APP MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS, AND BONGÉNI ARE NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGES, LIABILITIES OR LOSSES RESULTING FROM SUCH PROBLEMS.
You shall indemnify, defend (at Bongéni’s option) and hold harmless Bongéni and their respective officers, directors, employees, agents, successors and assigns from and against any and all liabilities, expenses (including legal fees), damages, penalties, fines, social security contributions and taxes arising out of or related to: (a) your breach of your representations, warranties or obligations under this Agreement; or (b) a claim by a third party (including Users, regulators and governmental authorities) directly or indirectly related to your provision of Logistics Services or use of the Bongéni Services. This indemnification provision shall not apply to your breach of any representations regarding your status as an independent contractor.
12. Limits of Liability.
BONGÉNI SHALL NOT BE LIABLE UNDER OR RELATED TO THIS AGREEMENT FOR ANY OF THE FOLLOWING, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES: (i) ANY INCIDENTAL, PUNITIVE, SPECIAL, EXEMPLARY, CONSEQUENTIAL, OR OTHER INDIRECT DAMAGES OF ANY TYPE OR KIND; OR (ii) YOUR OR ANY THIRD PARTY’S PROPERTY DAMAGE, OR LOSS OR INACCURACY OF DATA, OR LOSS OF BUSINESS, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE. EXCEPT FOR BONGÉNI’S OBLIGATIONS TO PAY AMOUNTS DUE TO YOU PURSUANT TO SECTION 4 ABOVE, BUT SUBJECT TO ANY LIMITATIONS OR OTHER PROVISIONS CONTAINED IN THIS AGREEMENT WHICH ARE APPLICABLE THERETO, IN NO EVENT SHALL THE LIABILITY OF BONGÉNI OR ITS AFFILIATES UNDER THIS AGREEMENT EXCEED THE AMOUNT OF SERVICE FEES ACTUALLY PAID TO OR DUE TO BONGÉNI HEREUNDER IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.
13. Term and Termination
- Term. This Agreement shall commence on the date accepted by you and shall continue until terminated as set forth herein 13.2 Termination. Either party may terminate this Agreement: (a) without cause at any time upon seven (7) days prior written notice to the other party; (b) immediately, without notice, for the other party’s material breach of this Agreement; or (c) immediately, without notice, in the event of the insolvency or bankruptcy of the other party, or upon the other party’s filing or submission of request for suspension of payment (or similar action or event) against the terminating party. In addition, Bongéni may terminate this Agreement or deactivate your Driver ID immediately, without notice, with respect to you in the event you no longer qualify, under applicable law or the standards and policies of Bongéni, to provide Logistics Services or to operate the Vehicle, or as otherwise set forth in this Agreement.
- Effect of Termination. Upon termination of the Agreement, you shall immediately delete and fully remove the Driver App from any of Your Devices. Outstanding payment obligations and Sections 1, 2.3, 2.5.3, 5.8, 5.9, 6.3, 7, 8, 10, 11, 13.3, 14, 15 and 16 shall survive the termination of this Agreement.
14. Relationship of the Parties
- Except as otherwise expressly provided herein with respect to Bongéni acting as the limited payment collection agent solely for the purpose of collecting payment from Users on your behalf, the relationship between the parties under this Agreement is solely that of independent contracting parties. The parties expressly agree that: (a) this Agreement is not an employment agreement, nor does it create an employment relationship, between Bongéni and you; and (b) no joint venture, partnership, or agency relationship exists between Bongéni and you.
- You have no authority to bind Bongéni or its Affiliates and you undertake not to hold yourself out as an employee, agent or authorised representative of Bongéni or its Affiliates. Where, by implication of mandatory law or otherwise, you may be deemed an agent or representative of Bongéni, you undertake and agree to indemnify, defend (at Bongéni’s option) and hold Bongéni harmless from and against any claims by any person or entity based on such implied agency or representative relationship.
15. Miscellaneous Terms
- Modification. In the event Bongéni modifies the terms and conditions of this Agreement at any time, such modifications shall be binding on you only upon your acceptance of the modified Agreement. Bongéni reserves the right to modify any information referenced at hyperlinks from this Agreement from time to time. You hereby acknowledge and agree that, by using the Bongéni Services, or downloading, installing or using the Driver App, you are bound by any future amendments and additions to information referenced at hyperlinks herein, or documents incorporated herein, including with respect to Fare Calculations. Continued use of the Bongéni Services or Driver App after any such changes shall constitute your consent to such changes.
- Supplemental Terms. Supplemental terms may apply to your use of the Bongéni Services, such as use policies or terms related to certain features and functionality, which may be modified from time to time (“Supplemental Terms”). You may be presented with certain Supplemental Terms from time to time. Supplemental Terms are in addition to, and shall be deemed a part of, this Agreement. Supplemental Terms shall prevail over this Agreement in the event of a conflict.
- Severability. If any provision of this Agreement is or becomes invalid or non-binding, the parties shall remain bound by all other provisions hereof. 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 this Agreement.
- Assignment. Neither party shall assign or transfer this Agreement or any of its rights or obligations hereunder, in whole or in part, without the prior written consent of the other party; provided that Bongéni may assign or transfer this Agreement or any or all of its rights or obligations under this Agreement from time to time without consent: (a) to an Affiliate; or (b) to an acquirer of all or substantially all of Bongéni’s business, equity or assets.
- Entire Agreement. This Agreement, including all Supplemental Terms, constitutes the entire agreement and understanding of the parties with respect to its subject matter and replaces and supersedes all prior or contemporaneous agreements or undertakings regarding such subject matter. In this Agreement, the words “including” and “include” mean “including, but not limited to.” The recitals form a part of this Agreement.
- No Third Party Beneficiaries. There are no third party beneficiaries to this Agreement. Nothing contained in this Agreement is intended to or shall be interpreted to create any third-party beneficiary claims.
- Notices. Any notice delivered by Bongéni to you under this Agreement will be delivered by email to the email address associated with your account or by posting on the portal available to you on the Bongéni Services. Any notice delivered by you to Bongéni under this Agreement will be delivered by contacting Bongéni at http://partners.Bongéni.com in the “Contact Us” section.
16. Governing Law
This Agreement shall be governed by the laws of Mauritius and you hereby consent and submit to the exclusive jurisdiction of the courts of Mauritius for the purposes of litigating any dispute pertaining to this Agreement.
By clicking “I accept” or by providing your application to become Bongéni Driving Partner, you expressly acknowledge that you have read, understood, and taken steps to thoughtfully consider the consequences of this Agreement, that you agree to be bound by the terms and conditions of the Agreement, and that you are legally competent to enter into this Agreement with Bongéni.