Zantango Terms of Service
Last Updated: March 10, 2021
These Terms of Service constitute a legally binding agreement (the "Agreement") between you and Zantango Inc., its parents, subsidiaries, representatives, affiliates, officers and directors (collectively, "Zantango," "we," "us" or "our") governing your use of the Zantango application (the "Zantango App"), website, and technology platform (collectively, the "Zantango Platform").
PLEASE BE ADVISED: THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOW CLAIMS BETWEEN YOU AND ZANTANGO CAN BE BROUGHT (SEE SECTION 17 BELOW). THESE PROVISIONS WILL, WITH LIMITED EXCEPTION, REQUIRE YOU TO SUBMIT CLAIMS YOU HAVE AGAINST ZANTANGO TO BINDING AND FINAL ARBITRATION ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS, GROUP OR REPRESENTATIVE ACTION OR PROCEEDING. AS A TANGOER OR TANGOER APPLICANT, YOU HAVE AN OPPORTUNITY TO OPT OUT OF ARBITRATION WITH RESPECT TO CERTAIN CLAIMS AS PROVIDED IN SECTION 17.
By entering into this Agreement, and/or by using or accessing the Zantango Platform you expressly acknowledge that you understand this Agreement (including the dispute resolution and arbitration provisions in Section 17) and accept all of its terms. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT USE OR ACCESS THE ZANTANGO PLATFORM OR ANY OF THE SERVICES PROVIDED THROUGH THE zantango PLATFORM. If you use the Zantango Platform in another country, you agree to be subject to Zantango's terms of service for that country.
1. The Zantango Platform
The Zantango Platform provides an arena where, among other things, persons who seek assistance online ("Users") can be matched with online concierges ("Tangoers"). As a User, you authorize Zantango to match you with Tangoers based on factors such as your location, the estimated availability of certain Tangoers, and platform efficiency. Any decision by a User to accept Concierge Services is a decision made in such User's sole discretion. Each Concierge Service provided by a Tangoer to a User shall constitute a separate agreement between such persons.
2. Modification to the Agreement
Zantango reserves the right to modify the terms and conditions of this Agreement, and such modifications shall be binding on you only upon your acceptance of the modified Agreement. Zantango reserves the right to modify any information on pages referenced in the hyperlinks from this Agreement from time to time, and such modifications shall become effective upon posting. Continued use of the Zantango Platform or Concierge Services after any such changes shall constitute your consent to such changes. Unless material changes are made to the arbitration provisions herein, you agree that modification of this Agreement does not create a renewed opportunity to opt out of arbitration (if applicable).
The Zantango Platform may only be used by individuals who have the right and authority to enter into this Agreement and are fully able and competent to satisfy the terms, conditions, and obligations herein. The Zantango Platform is not available to Users who have had their User account temporarily or permanently deactivated. You may only allow yourself and specified persons to use your User account, and you agree that you and them are the sole authorized users of your account. To use the Zantango Platform, each User or a specified person shall create a User account. Each User or specified person may only create one User account for the User, and Zantango reserves the right to deactivate any additional or duplicate accounts. Your participation in certain Zantango programs and use of certain Zantango products or services may be subject to additional eligibility requirements as determined by Zantango.
By becoming a User, you represent and warrant that you are at least 18 years old. Notwithstanding the foregoing, if you are the parent or legal guardian of a 16 or 17-year-old minor you may create a Zantango account for such minor to use the Zantango Platform. By creating a Zantango account for such minor, you hereby give permission and consent to the Agreement on the minor's behalf, and you shall assume any and all responsibility and liability for the minor's use of the Zantango Platform as provided by the terms of this Agreement and any applicable Supplemental Agreements. You will be responsible for any breach of the above representations, warranties and/or this Agreement, and/or any attempt of the minor to disaffirm this Agreement. Furthermore, you hereby represent that you are fully authorized to execute this Agreement on behalf of yourself and all other parents or legal guardians of the minor user.
As a User, you understand that the request or use of Concierge Services may result in charges to you ("Charges"). Pricing may vary based on the type of service you request (e.g., subscription, cost-per-minute, or some other form) as described on the Zantango website or app. You are responsible for reviewing the applicable Zantango price quote within the Zantango Website or App and shall be responsible for all Charges incurred under your User account regardless of your awareness of such Charges or the amounts thereof.
Charges. There are two initial types of Charges -- subscription and pay-per-minute. This may expand at some point to also include transaction fees.
Potential Future Additional Charges.
If you are a Tangoer, you will receive payment for your provision of Tangoer Services pursuant to the terms of the Tangoer Addendum, which shall form part of this Agreement between you and Zantango.
6. Zantango Communications
By entering into this Agreement or for using the Zantango Platform, you agree to receive communications from us or communications related to the Zantango Platform at any of the phone numbers provided to Zantango by you or on your behalf, including via e-mail, text message, calls, and push notifications. You agree that texts, calls or prerecorded messages may be generated by automatic telephone dialing systems. Communications from Zantango, its affiliated companies and/or Tangoers, may include but are not limited to: operational communications concerning your User account or use of the Zantango Platform or Concierge Services, updates concerning new and existing features on the Zantango Platform, communications concerning marketing or promotions run by us or our third-party partners, and news concerning Zantango and industry developments. If you change or deactivate the phone number you provided to Zantango, you agree to update your account information to help prevent us from inadvertently communicating with anyone who acquires your old number. 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 TEXT "END" TO 46080 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 ZANTANGO PLATFORM OR RELATED SERVICES. IF YOU WISH TO OPT OUT OF ALL TEXTS OR CALLS FROM ZANTANGO (INCLUDING OPERATIONAL OR TRANSACTIONAL TEXTS OR CALLS), YOU CAN TEXT THE WORD "STOPALL" TO 46080 FROM THE MOBILE DEVICE RECEIVING THE MESSAGES, HOWEVER YOU ACKNOWLEDGE THAT OPTING OUT OF RECEIVING ALL TEXTS MAY IMPACT YOUR USE OF THE ZANTANGO PLATFORM OR RELATED SERVICES.
7. Your Information
8. Promotions, Referrals, and Loyalty Programs
Zantango, at its sole discretion, may make available promotions, referral programs and loyalty programs with different features to any Users or prospective Users. These promotions and programs, unless made to you, shall have no bearing whatsoever on your Agreement or relationship with Zantango. Zantango reserves the right to withhold or deduct credits or benefits obtained through a promotion or program in the event that Zantango determines or believes that the redemption of the promotion or receipt of the credit or benefit was in error, fraudulent, illegal, or in violation of the applicable promotion or program terms or this Agreement. Zantango reserves the right to terminate, discontinue or cancel any promotions or programs at any time and in its sole discretion without notice to you.
9. Restricted Activities
With respect to your use of the Zantango Platform and your participation in the Concierge Services, you agree that you will not:
10. Tangoer Representations, Warranties and Agreements
By providing Concierge Services as a Tangoer on the Zantango Platform, you represent, warrant, and agree that:
11. Intellectual Property
All intellectual property rights in the Zantango Platform shall be owned by Zantango absolutely and in their entirety. These rights include database rights, copyright, design rights (whether registered or unregistered), trademarks (whether registered or unregistered) and other similar rights wherever existing in the world together with the right to apply for protection of the same. All other trademarks, logos, service marks, company or product names set forth in the Zantango Platform are the property of their respective owners. You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information ("Submissions") provided by you to us are non-confidential and shall become the sole property of Zantango. Zantango shall own exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
ZANTANGO and other Zantango logos, designs, graphics, icons, scripts and service names are registered trademarks, trademarks or trade dress of Zantango in the United States and/or other countries (collectively, the "Zantango Marks"). If you provide Concierge Services as a Tangoer, Zantango grants to you, during the term of this Agreement, and subject to your compliance with the terms and conditions of this Agreement, a limited, revocable, non-exclusive license to display and use the Zantango Marks solely on the Zantango stickers/decals, Zantango Amp, and any other Zantango-branded items provided by Zantango directly to you in connection with providing the Concierge Services ("License"). The License is non-transferable and non-assignable, and you shall not grant to any third party any right, permission, license or sublicense with respect to any of the rights granted hereunder without Zantango's prior written permission, which it may withhold in its sole discretion. The Zantango logo (or any Zantango Marks) may not be used in any manner that is likely to cause confusion, including but not limited to: use of a Zantango Mark in a domain name or Zantango referral code, or use of a Zantango Mark as a social media handle or name, avatar, profile photo, icon, favicon, or banner. You may identify yourself as a Tangoer on the Zantango Platform, but may not misidentify yourself as Zantango, an employee of Zantango, or a representative of Zantango.
You acknowledge that Zantango is the owner and licensor of the Zantango Marks, including all goodwill associated therewith, and that your use of the Zantango logo (or any Zantango Marks) will confer no interest in or ownership of the Zantango Marks in you but rather inures to the benefit of Zantango. You agree to use the Zantango logo strictly in accordance with Zantango's Brand Guidelines, as may be provided to you and revised from time to time, and to immediately cease any use that Zantango determines to nonconforming or otherwise unacceptable.
You agree that you will not: (1) create any materials that use the Zantango Marks or any derivatives of the Zantango Marks as a trademark, service mark, trade name or trade dress, other than as expressly approved by Zantango in writing; (2) use the Zantango Marks in any way that tends to impair their validity as proprietary trademarks, service marks, trade names or trade dress, or use the Zantango Marks other than in accordance with the terms, conditions and restrictions herein; (3) take any other action that would jeopardize or impair Zantango's rights as owner of the Zantango Marks or the legality and/or enforceability of the Zantango Marks, including, challenging or opposing Zantango's ownership in the Zantango Marks; (4) apply for trademark registration or renewal of trademark registration of any of the Zantango Marks, any derivative of the Zantango Marks, any combination of the Zantango Marks and any other name, or any trademark, service mark, trade name, symbol or word which is similar to the Zantango Marks; (5) use the Zantango Marks on or in connection with any product, service or activity that is in violation of any law, statute, government regulation or standard.
You agree you will not rent, lease, lend, sell, or otherwise redistribute the Zantango Tangoer amp, or manufacture, produce, print, sell, distribute, purchase, or display counterfeit/inauthentic Zantango Tangoer amps or other Zantango Marks or (including but not limited to signage, stickers, apparel, or decals) from any source other than directly from Zantango.
Violation of any provision of this License may result in immediate termination of the License, in Zantango's sole discretion, a takedown request sent to the appropriate ISP, or social media platform, and/or a Uniform Domain-Name Dispute-Resolution Policy Proceeding (or equivalent proceeding). If you create any materials (physical or digital) bearing the Zantango Marks (in violation of this Agreement or otherwise), you agree that upon their creation Zantango exclusively owns all right, title and interest in and to such materials, including any modifications to the Zantango Marks or derivative works based on the Zantango Marks or Zantango copyrights. You further agree to assign any interest or right you may have in such materials to Zantango, and to provide information and execute any documents as reasonably requested by Zantango to enable Zantango to formalize such assignment.
Zantango respects the intellectual property of others, and expects Users to do the same.
The following disclaimers are made on behalf of Zantango, our affiliates, subsidiaries, parents, successors and assigns, and each of our respective officers, directors, employees, agents, and shareholders.
Zantango does not provide online concierge services. It is up to the Tangoer to decide whether or not to offer concierge services to a User contacted through the Zantango Platform, and it is up to the User to decide whether or not to accept these services from any Tangoer contacted through the Zantango Platform. We cannot ensure that a Tangoer or User will complete any services. We have no control over the quality of the experience that occurs as a result of the Concierge Services.
The Zantango Platform is provided on an "as is" basis and without any warranty or condition, express, implied or statutory. We do not guarantee and do not promise any specific results from use of the Zantango Platform and/or the Concierge Services, including the ability to provide or receive Concierge Services at any given location or time. Zantango reserves the right, for example, to limit or eliminate access to the Zantango Platform for Concierge Services in specific geographic areas and/or at specific times based on commercial viability, public health concerns, or changes in law. To the fullest extent permitted by law, we specifically disclaim any implied warranties of title, merchantability, fitness for a particular purpose and non-infringement. Some states do not allow the disclaimer of implied warranties, so the foregoing disclaimer may not apply to you.
We do not warrant that your use of the Zantango Platform or Concierge Services will be accurate, complete, reliable, current, secure, uninterrupted, always available, or error-free, or will meet your requirements, that any defects in the Zantango Platform will be corrected, or that the Zantango Platform is free of viruses or other harmful components. We disclaim liability for, and no warranty is made with respect to, connectivity and availability of the Zantango Platform or Concierge Services.
We cannot guarantee that each User or Tangoer is who he or she claims to be. Please use common sense when using the Zantango Platform and Concierge Services. For Tangoers, this includes looking at the available photo of the User you have matched with to make sure it is the same individual you see in person. Please note that there are also risks of dealing with underage persons or people acting under false pretense, and we do not accept responsibility or liability for any content, communication or other use or access of the Zantango Platform by persons under the age of 18 in violation of this Agreement.
Zantango is not responsible for the conduct, whether online or offline, of any User of the Zantango Platform or Concierge Services. You are solely responsible for your interactions with other Users. By using the Zantango Platform and participating in the Concierge Services, you agree that Zantango is not responsible for the acts or omissions of Users on the Zantango Platform or participating in the Concierge Services.
Users are responsible for the use of your User account and Zantango expressly disclaims any liability arising from the unauthorized use of your User account. Should you suspect that any unauthorized party may be using your User account or you suspect any other breach of security, you agree to notify us immediately.
It is possible for others to obtain information about you that you provide, publish or post to or through the Zantango Platform (including any profile information you provide), send to other Users, or share during the Concierge Services, and to use such information to harass or harm you. We are not responsible for the use of any personal information that you disclose to Tangoers on the Zantango Platform or through the Concierge Services. Please carefully select the type of information that you reveal or post through the Zantango Platform or the Concierge Services or release to others. We disclaim all liability, regardless of the form of action, for the acts or omissions of other Users (including unauthorized users, or "hackers").
Opinions, advice, statements, offers, or other information or content concerning Zantango or made available through the Zantango Platform, but not directly by us, are those of their respective authors, and should not necessarily be relied upon. Such authors are solely responsible for such content. Under no circumstances will we be responsible for any loss or damage resulting from your reliance on information or other content posted by third parties, whether on the Zantango Platform or otherwise. We reserve the right, but we have no obligation, to monitor the materials revealed or posted on the Zantango Platform and remove any such material that in our sole opinion violates, or is alleged to violate, the law or this agreement or which might be offensive, illegal, or that might violate the rights, harm, or threaten the safety of Users or others.
Zantango advises you to use the Zantango Platform with a data plan with unlimited or very high data usage limits, and Zantango shall not be responsible or liable for any fees, costs, or overage charges associated with any data plan you use to access the Zantango Platform.
This paragraph applies to any version of the Zantango Platform that you acquire from the Apple App Store. This Agreement is entered into between you and Zantango. Apple, Inc. ("Apple") is not a party to this Agreement and shall have no obligations with respect to the Zantango Platform. Zantango, not Apple, is solely responsible for the Zantango Platform and the content thereof as set forth hereunder. However, Apple and Apple's subsidiaries are third-party beneficiaries of this Agreement. Upon your acceptance of this Agreement, Apple shall have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third-party beneficiary thereof. This Agreement incorporates by reference Apple's Licensed Application End User License Agreement (https://www.apple.com/legal/internet-services/itunes/dev/stdeula/), for purposes of which, you are "the end-user." In the event of a conflict in the terms of the Licensed Application End User License Agreement and this Agreement, the terms of this Agreement shall control.
Zantango shall not be in breach of this Agreement nor liable for failure or delay in performing obligations under this Agreement if such failure or delay results from events, circumstances or causes beyond its reasonable control including (without limitation) natural disasters or acts of God; acts of terrorism; labor disputes or stoppages; war; government action; epidemic or pandemic; chemical or biological contamination; strikes, riots, or acts of domestic or international terrorism; quarantines; national or regional emergencies; or any other cause, whether similar in kind to the foregoing or otherwise, beyond the party's reasonable control. All service dates under this Agreement affected by force majeure shall be tolled for the duration of such force majeure. The parties hereby agree, when feasible, not to cancel but reschedule the pertinent obligations as soon as practicable after the force majeure condition ceases to exist.
13. State and Local Disclosures
Certain jurisdictions require additional disclosures to you. We will update the disclosures page as jurisdictions add, remove or amend these required disclosures, so please check in regularly for updates.
You will defend, indemnify, and hold Zantango including our affiliates, subsidiaries, parents, successors and assigns, and each of our respective officers, directors, employees, agents, or shareholders harmless from any claims, actions, suits, losses, costs, liabilities and expenses (including reasonable attorneys' fees) relating to or arising out of your use of the Zantango Platform and participation in the Concierge Services, including: (1) your breach of this Agreement or the documents it incorporates by reference; (2) your violation of any law or the rights of a third party, including, Tangoers, Users, other motorists, and pedestrians, as a result of your own interaction with such third party; (3) any allegation that any materials that you submit to us or transmit through the Zantango Platform or to us infringe or otherwise violate the copyright, trademark, trade secret or other intellectual property or other rights of any third party; (4) any other activities in connection with the Concierge Services. This indemnity shall be applicable without regard to the negligence of any party, including any indemnified person.
15. Limitation of Liability
IN NO EVENT WILL ZANTANGO, INCLUDING OUR AFFILIATES, SUBSIDIARIES, PARENTS, SUCCESSORS AND ASSIGNS, AND EACH OF OUR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR SHAREHOLDERS (COLLECTIVELY "ZANTANGO" FOR PURPOSES OF THIS SECTION), BE LIABLE TO YOU FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, CONSEQUENTIAL, OR INDIRECT DAMAGES (INCLUDING DAMAGES FOR DELETION, CORRUPTION, LOSS OF DATA, LOSS OF PROGRAMS, FAILURE TO STORE ANY INFORMATION OR OTHER CONTENT MAINTAINED OR TRANSMITTED BY THE ZANTANGO PLATFORM, SERVICE INTERRUPTIONS, OR FOR THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES) ARISING OUT OF OR IN CONNECTION WITH THE ZANTANGO PLATFORM, CONCIERGE SERVICES, OR THIS AGREEMENT, HOWEVER ARISING INCLUDING NEGLIGENCE, EVEN IF WE OR OUR AGENTS OR REPRESENTATIVES KNOW OR HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE ZANTANGO PLATFORM MAY BE USED BY YOU TO REQUEST online concierge services WITH THIRD-PARTY PROVIDERS, BUT YOU AGREE THAT ZANTANGO HAS NO RESPONSIBILITY OR LIABILITY TO YOU RELATED TO ANY SERVICES PROVIDED TO YOU BY THIRD PARTY PROVIDERS OTHER THAN AS EXPRESSLY SET FORTH IN IN THIS AGREEMENT. CERTAIN JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
16. Term and Termination
This Agreement is effective upon your acceptance of this Agreement. This Agreement may be terminated: a) by User, without cause, upon seven (7) days' prior written notice to Zantango; or b) by either Party immediately, without notice, upon the other Party's material breach of this Agreement, including but not limited to any breach of Section 9 or breach of Section 10(a) through (i) of this Agreement. In addition, Zantango may terminate this Agreement or deactivate your User account immediately in the event: (1) you no longer qualify to provide Concierge Services or to operate the approved vehicle under applicable law, rule, permit, ordinance or regulation; (2) you fall below Zantango's star rating or cancellation threshold; (3) Zantango has the good faith belief that such action is necessary to protect the safety of the Zantango community or third parties, provided that in the event of a deactivation pursuant to (1)-(3) above, you will be given notice of the potential or actual deactivation and an opportunity to attempt to cure the issue to Zantango's reasonable satisfaction prior to Zantango permanently terminating the Agreement. For all other breaches of this Agreement, you will be provided notice and an opportunity to cure the breach. If the breach is cured in a timely manner and to Zantango's satisfaction, this Agreement will not be permanently terminated. Sections 2, 6, 7 (with respect to the license), 11-12, 14-19, and 21 shall survive any termination or expiration of this Agreement.
(a) Agreement to Binding Arbitration Between You and Zantango.
YOU AND ZANTANGO MUTUALLY AGREE TO WAIVE OUR RESPECTIVE RIGHTS 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. This agreement to arbitrate ("Arbitration Agreement") is governed by the Federal Arbitration Act ("FAA"); but if the FAA is inapplicable for any reason, then this Arbitration Agreement is governed by the laws of the State of Delaware, including Del. Code tit. 10, § 5701 et seq., without regard to choice of law principles. This Arbitration Agreement survives after the Agreement terminates or your relationship with Zantango ends. ANY ARBITRATION UNDER THIS AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED. Except as expressly provided below, this Arbitration Agreement applies to all Claims (defined below) between you and Zantango, including our affiliates, subsidiaries, parents, successors and assigns, and each of our respective officers, directors, employees, agents, or shareholders. This Arbitration Agreement also applies to claims between you and Zantango's service providers, including but not limited to 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 below, ALL DISPUTES AND CLAIMS BETWEEN US (EACH A "CLAIM" AND COLLECTIVELY, "CLAIMS") SHALL BE EXCLUSIVELY RESOLVED BY BINDING ARBITRATION SOLELY BETWEEN YOU AND ZANTANGO. 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: this Agreement and prior versions thereof (including the breach, termination, enforcement, interpretation or validity thereof), the Zantango Platform, the Concierge Services, rental or use of bikes or scooters through the Zantango Platform, Zantango promotions, gift card, referrals or loyalty programs, any other goods or services made available through the Zantango Platform, your relationship with Zantango, the threatened or actual suspension, deactivation or termination of your User Account or this Agreement, background checks performed by or on Zantango's behalf, payments made by you or any payments made or allegedly owed to you, any promotions or offers made by Zantango, 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 of 1974 (except for individual claims for employee benefits under any benefit plan sponsored by Zantango 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 ZANTANGO 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 ZANTANGO 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 ZANTANGO 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. NOTWITHSTANDING THE FOREGOING, THIS SUBSECTION (B) SHALL NOT APPLY TO REPRESENTATIVE PRIVATE ATTORNEYS GENERAL ACT CLAIMS BROUGHT AGAINST ZANTANGO, WHICH ARE ADDRESSED SEPARATELY IN SECTION 17(C).
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 this Agreement, the Arbitration Agreement or the AAA Rules, disputes regarding the interpretation, applicability, or enforceability of the Class Action Waiver may be resolved only by a court and not by an arbitrator. In any case in which: (1) the dispute is filed as a class, collective, or representative action and (2) there is a final judicial determination that the Class Action Waiver is unenforceable with respect to any Claim or any particular remedy for a Claim (such as a request for public injunctive relief), then that Claim or particular remedy (and only that Claim or particular remedy) shall be severed from any remaining claims and/or remedies and may be brought in a court of competent jurisdiction, but the Class Action Waiver shall be enforced in arbitration on an individual basis as to all other Claims or remedies to the fullest extent possible.
(c) Representative PAGA Waiver.
Notwithstanding any other provision of this Agreement or the Arbitration Agreement, to the fullest extent permitted by law: (1) you and Zantango agree not to bring a representative action on behalf of others under the Private Attorneys General Act of 2004 ("PAGA"), California Labor Code § 2698 et seq., in any court or in arbitration, and (2) for any claim brought on a private attorney general basis, including under the California PAGA, both you and Zantango agree that any such dispute shall be resolved in arbitration on an individual basis only (i.e., to resolve whether you have personally been aggrieved or subject to any violations of law), and that such an action may not be used to resolve the claims or rights of other individuals in a single or collective proceeding (i.e., to resolve whether other individuals have been aggrieved or subject to any violations of law) (collectively, "representative PAGA Waiver"). Notwithstanding any other provision of this Agreement, the Arbitration Agreement or the AAA Rules, disputes regarding the scope, applicability, enforceability, revocability or validity of this representative PAGA Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. If any provision of this representative PAGA Waiver is found to be unenforceable or unlawful for any reason: (i) the unenforceable provision shall be severed from this Agreement; (ii) severance of the unenforceable provision shall have no impact whatsoever on the Arbitration Agreement or the requirement that any remaining Claims be arbitrated on an individual basis pursuant to the Arbitration Agreement; and (iii) any such representative PAGA or other representative private attorneys general act claims must be litigated in a civil court of competent jurisdiction and not in arbitration. To the extent that there are any Claims to be litigated in a civil court of competent jurisdiction because a civil court of competent jurisdiction determines that the representative PAGA Waiver is unenforceable with respect to those Claims, the Parties agree that litigation of those Claims shall be stayed pending the outcome of any individual Claims in arbitration.
(d) Rules Governing the Arbitration.
Any arbitration conducted pursuant to this Arbitration Agreement shall be administered by the American Arbitration Association ("AAA") pursuant to its Consumer Arbitration Rules (https://www.adr.org/Rules) that are in effect at the time the arbitration is initiated, as modified by the terms set forth in this Agreement. Copies of these rules can be obtained at the AAA's website (www.adr.org) (the "AAA Rules"). 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 Zantango 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 Users or Tangoers, but is bound by rulings in prior arbitrations involving the same User or Tangoer 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.
(e) Arbitration Fees and Awards.
The payment of filing and arbitration fees will be governed by the relevant AAA Rules subject to the following modifications:
(f) Location and Manner of Arbitration.
Unless you and Zantango agree otherwise, any arbitration hearings between Zantango and a User will take place in Los Angeles county, California, USA. Your right to a hearing will be determined by the AAA Rules.
(g) Exceptions to Arbitration.
This Arbitration Agreement shall not require arbitration of the following types of claims: (1) small claims actions brought on an individual basis that are within the scope of such small claims court's jurisdiction; (2) a representative action brought on behalf of others under PAGA or other private attorneys general acts, to the extent the representative PAGA Waiver in Section 17(c) of such action is deemed unenforceable by a court of competent jurisdiction under applicable law not preempted by the FAA; (3) claims for workers' compensation, state disability insurance and unemployment insurance benefits; (4) claims that may not be subject to arbitration as a matter of generally applicable law not preempted by the FAA; and (5) individual claims of sexual assault or sexual harassment in connection with the use of the Zantango Platform or Concierge Services. Where these claims are brought in a court of competent jurisdiction, Zantango will not require arbitration of those claims. Zantango's agreement not to require arbitration of these claims does not waive the enforceability of any other provision of this Arbitration Agreement (including without limitation the waivers provided in Section 17(b)), or of the enforceability of this Arbitration Agreement as to any other dispute, claim, or controversy.
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.
Except as otherwise provided in the severability provisions in subsections (b) and (c) above, 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 the Arbitration Agreement shall be given full force and effect.
(i) Tangoer Claims in Pending Settlement.
If you are a member of a putative class in a lawsuit against Zantango involving Tangoer 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 Tangoer Claims in that particular class action. Instead, your Tangoer 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.
(j) Opting Out of Arbitration for Tangoer Claims That Are Not In a Pending Settlement Action.
As a Tangoer or Tangoer applicant, you may opt out of the requirement to arbitrate Tangoer Claims defined in Section 17(e)(2) (except as limited by Section 17(i) above) pursuant to the terms of this subsection if you have not previously agreed to an arbitration provision in Zantango's Terms of Service where you had the opportunity to opt out of the requirement to arbitrate. If you have previously agreed to such an arbitration provision, you may opt out of any revisions to your prior arbitration agreement made by this provision in the manner specified below, but opting out of this arbitration provision has no effect on any previous, other, or future arbitration agreements that you may have with Zantango. If you have not previously agreed to such an arbitration provision and do not wish to be subject to this Arbitration Agreement with respect to Tangoer Claims, you may opt out of arbitration with respect to such Tangoer Claims, other than those in a Pending Settlement Action, by notifying Zantango in writing of your desire to opt out of arbitration for such Tangoer Claims, which writing must be dated, signed and delivered by electronic mail to arbitrationoptout@Zantango.com.
You should assume that there may be in the future, lawsuits against Zantango alleging class, collective, and/or representative Tangoer Claims in which the plaintiffs seek to act on your behalf, and which, if successful, could result in some monetary recovery to you. But if you do agree to arbitration of Tangoer Claims with Zantango under this Arbitration Agreement, you are agreeing in advance that you will bring all such claims, and seek all monetary and other relief, against Zantango in an individual arbitration, except for the Tangoer Claims that are part of a Pending Settlement Action. You are also agreeing in advance that you will not participate in, or seek to recover monetary or other relief, for such claims in any court action or class, collective, and/or representative action. You have the right to consult with counsel of your choice concerning this Arbitration Agreement and you will not be subject to retaliation if you exercise your right to assert claims or opt-out of any Tangoer Claims under this Arbitration Agreement.
(k) Optional Pre-Arbitration Negotiation Process.
Before initiating any arbitration or proceeding, you and Zantango 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 Zantango. 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.
You agree not to use any technical, financial, strategic and other proprietary and confidential information relating to Zantango's business, operations and properties, information about a User made available to you in connection with such User's use of the Platform, which may include the User's name, pick-up location, contact information and photo ("Confidential Information") disclosed to you by Zantango for your own use or for any purpose other than as contemplated herein. You shall not disclose or permit disclosure of any Confidential Information to third parties, and you agree not to store separate and outside of the Zantango Platform any User Information obtained from the Zantango Platform. As a Tangoer, you understand that some of User Information you receive may be protected by federal and/or state confidentiality laws, such as the Health Information Portability and Accountability Act of 1996 ("HIPAA"), governing the privacy and security of protected (patient) health information. In the event that you know a User, you should not disclose to anyone the identity of the User, as this could violate HIPAA. You understand that any violation of the Agreement's confidentiality provisions may violate HIPAA or state confidentiality laws and could result in civil or criminal penalties against you. You agree to take all reasonable measures to protect the secrecy of and avoid disclosure or use of Confidential Information of Zantango in order to prevent it from falling into the public domain. Notwithstanding the above, you shall not have liability to Zantango with regard to any Confidential Information which you can prove: was in the public domain at the time it was disclosed by Zantango or has entered the public domain through no fault of yours; was known to you, without restriction, at the time of disclosure, as demonstrated by files in existence at the time of disclosure; is disclosed with the prior written approval of Zantango; becomes known to you, without restriction, from a source other than Zantango without breach of this Agreement by you and otherwise not in violation of Zantango's rights; or is disclosed pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided, however, that You shall provide prompt notice of such court order or requirement to Zantango to enable Zantango to seek a protective order or otherwise prevent or restrict such disclosure.
19. Relationship with Zantango
As a Tangoer on the Zantango Platform, you acknowledge and agree that you and Zantango are in a direct business relationship, and the relationship between the parties under this Agreement is solely that of independent contracting parties. You and Zantango expressly agree that (1) this is not an employment agreement and does not create an employment relationship between you and Zantango; and (2) no joint venture, franchisor-franchisee, partnership, or agency relationship is intended or created by this Agreement. You have no authority to bind Zantango, and you undertake not to hold yourself out as an employee, agent or authorized representative of Zantango.
Zantango 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 Concierge Services, or your acts or omissions. You retain the sole right to determine when, where, and for how long you will utilize the Zantango Platform. Zantango does not, and shall not be deemed to, unilaterally prescribe specific dates, times of day, or any minimum number of hours for you to utilize the Zantango Platform. You retain the option to accept or to decline or ignore a User's request for Concierge Services via the Zantango Platform, or to cancel an accepted request for Concierge Services via the Zantango Platform, subject to Zantango's then-current cancellation policies. Zantango does not, and shall not be deemed to, require you to accept any specific request for Concierge Services as a condition of maintaining access to the platform. Zantango grants you permission to wear clothing displaying Zantango's names, logos or colors, but this does imply that you are an employee of Zantango. You acknowledge and agree that you have complete discretion to provide Concierge Services or otherwise engage in any other business or employment activities, including but not limited to providing services similar to the Concierge Services to other companies, and that Zantango does not, and shall not be deemed to, restrict you from engaging in any such activity.
Except as provided in Section 17, this Agreement shall be governed by the laws of the State of California without regard to choice of law principles. This choice of law provision is only intended to specify the use of California law to interpret this Agreement and is not intended to create any other substantive right to non- Californians to assert claims under California law whether by statute, common law, or otherwise. If any provision of this Agreement is or becomes invalid or non- binding, the parties shall remain bound by all other provisions of this Agreement. 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. You agree that this Agreement and all incorporated agreements may be automatically assigned by Zantango, in our sole discretion by providing notice to you. Except as explicitly stated otherwise, any notices to Zantango shall be given by certified mail, postage prepaid and return receipt requested to Zantango, Inc., 11692 Darlington Avenue, PH2, Los Angeles, CA 90049. Any notices to you shall be provided to you through the Zantango Platform or given to you via the email or physical address you provide to Zantango during the registration process. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. The words "include", "includes" and "including" are deemed to be followed by the words "without limitation". A party's failure to act with respect to a breach by the other party does not constitute a waiver of the party's right to act with respect to subsequent or similar breaches. This Agreement sets forth the entire understanding and agreement between you and Zantango with respect to the subject matter hereof and supersedes all previous understandings and agreements between the parties, whether oral or written.
If you have any questions regarding the Zantango Platform or Concierge Services, please contact us at firstname.lastname@example.org.