Terms and Conditions
INDEPENDENT CONTRACTOR AGREEMENT
WHEREAS, the Company provides transportation services to persons (“Riders”) by enabling them to connect with independent providers of passenger transportation services using the “Universal Driver App” (described below) (“Transportation Services”). The Universal Driver App and other services provided by the Company (together with the App, are sometimes referred to in this Agreement collectively as “Company Services”) enable authorized transportation providers, Drivers, to seek, receive and fulfill requests for Driving Service Jobs (defined below) from Riders. You are entering into this Agreement for the purpose of providing Transportation Services to Riders using the Company Services; and
WHEREAS, in order to be an authorized independent contractor Driver for the Company, you must agree to the below terms and conditions. In addition, if you wish to affiliate your Vehicle (defined below) with the Company’s for hire vehicle black care base, you must also enter into a Cooperative Ownership Radio Rights Agreement (the “Radio Rights Agreement”) pursuant to which the Company will sell to you cooperative ownership of certain Radio Rights and Company’s Proprietary Program, as such terms are defined in the Radio Rights Agreement. Upon your entering into this Agreement (and if wish to have your Vehicle affiliated with the Company’s black car base, also the Registration Rights Agreement), (electronically or otherwise), you and the Company will be bound by the terms and conditions set forth herein and therein.IMPORTANT: PLEASE REVIEW CAREFULLY, AMONG OTHER THINGS, THE ARBITRATION PROVISION SET FORTH BELOW. UNLESS YOU OPT OUT OF THAT PROVISION AT THE TIME YOU SIGN THIS AGREEMENT, YOU WILL BE REQUIRED TO RESOLVE DISPUTES WITH THE COMPANY ON AN INDIVIDUAL BASIS THROUGH FINAL AND BINDING ARBITRATION. BY YOUR ENTERING INTO THIS AGREEMENT, YOU WILL BE ACKNOWLEDGING THAT YOU HAVE READ AND UNDERSTOOD ALL OF THE TERMS OF THIS AGREEMENT. NOW, THEREFORE
, in consideration of the covenants contained herein and other good and valuable consideration, the receipt and legal sufficiency of which are hereby acknowledged, the Parties agree as follows:
Company agrees to retain Driver to provide Transportation Services as an independent contractor. Driver hereby accepts such engagement and agrees to comply with the terms and conditions set forth herein. Driver shall provide and dedicate all resources necessary to perform the Transportation Services in a timely and professional manner consistent with the highest industry standards. 2. Base Affiliation.
If Driver’s Vehicle (described below) is not currently registered with a for hire vehicle black car base (“Black Car Base”) licensed to operate as such by the New York City Taxi & Limousine Commission (“TLC”), Driver shall take all action necessary to affiliate Driver’s Vehicle, with Company’s for-hire vehicle black car base in accordance with applicable TLC rules including but not limited to submitting all necessary applications and arranging for all required vehicle inspections. If Driver’s Vehicle is currently affiliated with another Black Car Base, and Driver and Company agree that during the Term of this Agreement Driver is instead to be affiliated with the Company’s Black Car Base, Driver agrees to complete a Base, Plate and Vehicle Transfer and Affiliation Application and submit such form to the TLC (along with all supporting documentation required) and attend any appointments and inspections required by the TLC in a timely manner. If Company and Driver do not agree that Driver is to be affiliated with the Company’s Black Car Base during the Term of this Agreement, Driver warrants, represents and agrees that Driver’s Vehicle is currently, and at all times during the Term of this Agreement shall be, affiliated with a Black Car Base other than the Company’s Black Car Base.3. Term.
This Agreement is effective as of the Effective Date and shall continue in effect for one (1) year and shall be automatically renewed annually for additional one-year terms unless written notice of non-renewal is sent by either Party on the other Party at least ten (10) days prior to the end of any one-year term, or unless terminated earlier, in accordance with paragraph 12 of this Agreement (the “Term”).4. Fees.
Company agrees to pay Driver a fee for each Driving Service Job (as defined hereafter) completed by Driver on behalf of the Company. A “Driving Service Job” is the successful completion by Driver of the pickup of a customer or client of Company and drop off of the customer or client at the customer’s or client’s chosen destination. A log of the Driving Service Jobs shall be stored and reflected by the Driver by closing out each Driving Service Job (when completed) on the Driver’s mobile device. The fees will be calculated based on the fare (excluding taxes) paid by the customer or client of the Company for the Driving Service Job completed by the Driver (the “Fare”), less (a) the Company’s processing fee, at the applicable rate then in effect; and (b) a percentage of the Fare retained by the Company as compensation for its services in respect of the Driving Service Job at the applicable rate then in effect (the “Commission”). The Fare is calculated based on the total of (a) the base fare, (b) the waiting time charges, (c) the charges for stops, and (d) any miscellaneous other charges to the Company’s customer or client, less any amount the Company shall agree with the client or customer to deduct by reason of dissatisfaction with the Driving Service Job. Once every week, or at some other date designated in advance by the Company (the “Closing Day”), the Company will provide payment of the Commissions earned to the Driver. 5. Expenses.
Driver acknowledges and agrees that Driver is solely responsible for all expenses incurred in connection with: (a) the maintenance and operation of the automobile used to perform the Driving Service Jobs for the Company, which such automobile shall be leased by or owned by Driver at Driver’s own expense; (b) maintaining liability insurance; (c) maintaining valid TLC decals and license; (d) maintaining workers’ compensation insurance for the Driver and Driver’s employees; and (e) any and all permits, fees, licenses, taxes, and other expenses of any kind or nature related to the performance of the Driving Service Jobs for Company. The Company shall reimburse Driver for parking and toll charges reasonably incurred by Driver in connection with each Driving Service Job, subject to and in accordance with applicable TLC rules (including those regarding rates) and the Company’s prevailing policies in effect during the Term of this Agreement, provided Driver complies with the Company’s prevailing policies for the reimbursement of such items.6. Use of App.
(a) Company licenses the right to use the “Universal Driver App” (the “App”), pursuant to a license agreement (“License Agreement”) with its affiliate GroundLink Holdings LLC (“Licensor”). Driver is hereby granted a non-exclusive, non-transferable right to use the App to receive dispatches, provided: (i) Driver shall use the App solely for the purposes expressly authorized by this Agreement and for no other purpose; and (ii) Driver shall not take any action which shall or could result in the Company being in violation of any term or condition of the License Agreement or this Agreement. Upon the expiration or termination of this Agreement for any reason, Driver’s right and license to use the App shall without notice to Driver immediately terminate and Driver shall not have any further rights to use and shall not use the App. Company may, in its sole discretion, also discontinue Driver’s use of the App at any time shall believe that Driver’s use of the App may cause the Company harm or may violate this Agreement.
(b) The App and all data and information of Company, Licensor and their respective affiliates (“Company Data”) related to Driving Service Jobs, including all intellectual property rights therein are and shall remain (as between you and Company) the exclusive property of Licensor, Company, and their affiliates. Neither this Agreement nor your use of the App or Company Data conveys or grants to you any rights: (i) in or related to the App or Company Data, except for the limited non-exclusive non-transferable license granted above; or (ii) to use or reference in any manner Company’s, Licensor’s or their respective affiliates’ company names, logos, product and service names, trademarks, services marks or other indicia of ownership, except as necessary to perform Driving Service Jobs in accordance with this Agreement.
(c) Additional; Restrictions. You cannot, and will not allow anyone else to: (a) license, sublicense, sell, resell, transfer, assign, encumber distribute or otherwise provide or make available to any other party the Company Services, or App in any way; (b) modify or make derivative works based upon the Company Services or App; (c) improperly use the Company Services or App, including creating Internet “links” to any part of the Company Services or App, “framing” or “mirroring” any part of the Company Services or App on any other websites or systems, or “scraping” or otherwise improperly obtaining data from the Company Services or App; (d) reverse engineer, decompile, modify, or disassemble the Company Services or 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 Company Services or 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 Company Services an automated program or script, including web spiders, crawlers, robots, indexers, bats, 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 Company Services; or (iv) attempt to gain unauthorized access to the Company Services or its related systems or networks. 7. Geolocation.
(a) Driver acknowledges and agrees that Driver’s geo-location information must be provided to the Company via Driver’s smartphone (“Smartphone”) in order to perform Driving Service Jobs. Driver acknowledges and agrees that: (a) Driver’s geo-location information may be obtained by the Company or its affiliates while the App is running; and (b) the approximate location of Driver’s Vehicle will be displayed to the user before and during the provision of Driving Service Jobs to such User. In addition, the Company and its affiliates may monitor, track and share with third parties Driver’s geo-location information obtained by the Driver App and Smartphone for safety and security purposes.
Upon the expiration or sooner termination of this Agreement, Driver agrees to immediately return to the Company all Company property, in the condition delivered to Driver, ordinary wear and tear excepted. 9. The Vehicle.
(a) Driver warrants, represents and agrees that during the Term of this Agreement at Driver’s sole cost and expense: that (i) the Driver is and shall be the sole owner or exclusive lessee of the vehicle described on the execution page of this Agreement (the “Vehicle”); (ii) the Vehicle is and shall be in good working order and is suitable for use as a black car for-hire vehicle (“FHV”), in accordance with all applicable rules of the New York City Taxi and Limousine Commission (“TLC”); (iii) only the Vehicle (and no other automobile or other vehicle) and no other person other than Driver or an Authorized Driver Employee (as defined below) is authorized to use the App or perform Driving Service Jobs; (iv) the Driver shall maintain the Vehicle as required by applicable TLC rules, and will have the Vehicle regularly serviced and inspected as required by the TLC; (v) the Vehicle shall be a black luxury vehicle, with black interior, of a make and model acceptable to the Company, as detailed in the Company’s policies in effect during the Term of this Agreement and which has not yet reached the minimum model year or total mileage for mandatory retirement under TLC rules for black car FHVs; (vi) the Vehicle is and shall be covered by auto-liability insurance which complies with the type and amount of insurance required under TLC rules for black car FHVs, which names the Company as an additional insured, and also provides a waiver of subrogation in favor of the Company (the “Auto Insurance”); and (vii) the Driver and each Authorized Driver Employee holds and shall maintain valid TLC licenses and FHV decals, and any and all other permits and fees, related to the performance of the Driving Services for Company, in accordance with all applicable rules of the TLC.
(b) Driver agrees to provide Company with a copy of a current certificate of insurance immediately upon obtaining and procuring such Insurance with respect to the Auto Insurance (and upon renewal); together with proof that Company is named as an additional insured. Driver also agrees to provide Company with copies of updated TLC decals and licenses, driver’s licenses, and vehicle registrations, when they are renewed, if changes are made, and from time to time upon reasonable request by Company.10. Conditions Precedent.
Driver agrees that as a condition precedent to entering into this Agreement, Driver shall:
(a) Provide Company with certificates of insurance evidencing the Auto Insurance;
(b) Provide Company with a copy of Driver’s and any of Authorized Driver Employee’s TLC decals and license, driver's license, and vehicle registration; and
(c) Provide Company with a completed IRS Form W-9.
(d) Company reserves the right, and Driver irrevocably consents to allow the Company to collect and review the following types of information about the Driver and each Authorized Driver Employee at any time and to consider such information in the context of its decision to retain Driver to perform Driving Services for the Company as an independent contractor: (i) a federal and state criminal background check; (ii) a credit check; (iii) Motor Vehicle Record (“MVR”) reports; and (iv) records of a recent physical examination or a statement from a physician evidencing health, in compliance with TLC rules and regulations for FHV drivers.11. Verification of Insurance, Licenses.
Pursuant to §59A-12 of the TLC Rules, Driver must secure full liability insurance coverage for his or her vehicle(s). Company must be named as an Additional Insured under Driver’s insurance policy. Driver agrees to provide Company with a copy of a current certificate of insurance immediately upon obtaining and procuring such insurance (and upon renewal); together with proof that Company is named as an Additional Insured. Driver also agrees to provide Company with a copy of updated TLC decals and licenses, driver’s licenses, and vehicle registrations, when they are renewed, if changes are made, and from time to time upon reasonable request by Company) and evidence that Driver is covered by workman’s compensation insurance provided by the Black Car Operators’ Injury Compensation Fund (the “Fund”).Driver acknowledges that the Company has no obligation to provide Driver or any of Driver’s employees or agents workman’s compensation insurance or any other insurance, all of which shall be Driver’s sole responsibility.12. Relationship Between The Parties.
Driver is responsible to Company merely as to the results to be accomplished and not as to the means and methods for accomplishing the results, except that Driver shall at all times conduct the Driving Services in a professional manner consistent with the highest industry standards and with courtesy extended to any passengers in accordance with ordinary business customs in the luxury ground transportation business, and in an expert fashion. Except for complying with the foregoing standard, Driver shall retain full control over Driver’s vehicle(s). Driver shall maintain full compliance with the foregoing standard, as well as any applicable laws, regulations, requirements and stipulations. Driver expressly agrees that Driver is an independent contractor and not an employee of the Company. Without limiting the foregoing, the Parties hereto specifically agree as follows:
(a) At all times, Driver shall be free from the control and direction of Company in the performance of the Driving Services required to be provided hereunder, and Company shall not exercise supervision or control over Driver in the performance of such Transportation Services. Driver shall provide Driver’s own Vehicle (and shall be responsible for the Vehicle’s maintenance) for use in performance of the Transportation Services.
(b) Driver may hire its own employees to perform the Driving Services under this Agreement, upon providing Company with a copy of the employee’s valid driver’s license, TLC decals and license, registration, a certificate of liability and declaration page showing the agent as insured for the limits required by the TLC (each an “Authorized Driver Employee”). The Company also reserves the right to request that Driver provide MVR reports for any Authorized Driver Employee. The Company is not engaging or employing any Authorized Driver Employee and shall have no responsibility or obligations to any Authorized Driver Employee, including making payments in respect of Driving Service Jobs, all of which shall be the sole and exclusive responsibility of Driver.
(c) Driver is free to provide Transportation Services to other businesses and third parties outside of any specific time period during which Driver provides Transportation Services to the Company and confirms that it is Driver’s intention to do so, subject to the provisions set forth in this Agreement. Company shall not be required to provide Driver any particular number of with Driver Service Jobs and Driving Service Jobs may be dispatched to any driver the Company shall deem appropriate in its sole discretion.
(d) Driver understands and agrees that Company shall not withhold any income or other federal, state or local taxes from the Commissions paid to Driver, nor shall it be required in any manner to pay any such taxes on behalf of Driver.
(e) Driver understands and agrees that the payment of all taxes, penalties, interest and other assessments, including, but not limited to those which may be imposed under the Internal Revenue Code of 1986, as amended or superseded from time to time, and laws of the United States or any state, for work performed for Company by Driver or any Authorized Driver Employee shall be the sole and exclusive responsibility of Driver, who shall be solely responsible for filing all tax and information returns and paying all such amounts. Nothing herein shall be construed as tax advice by Company.
(f) Driver understands and agrees that Driver will not be treated as an employee, among other things, for purposes of receiving Fringe Benefits, which may otherwise be provided by Company to its employees. “Fringe Benefits” includes, but is not limited to, group term life insurance, health insurance, dental insurance, long-term disability insurance, short-term disability insurance, and any other benefits ordinarily provided by Company to its employees.
(g) Driver’s provision of Transportation Services to Riders creates a direct business relationship between Driver and the Riders. Company is not responsible or liable for the actions or inactions of Riders in relation to your activities or your Vehicle. You will be solely responsible for any obligations or liabilities to Riders or third parties that arise from your provision of Transportation Services or the provision of Transportation Services by your any Authorized Driver Employee. You hereby authorize Company to release your contact and/or insurance information to Riders upon request.
(h) Driver acknowledges and agrees that Driver understands and agreements contained herein constitute a material inducement to Company to enter into this Agreement and the Radio Rights Agreement.13. Non-Solicitation; Confidentiality.
Driver recognizes that Company has a legitimate business interest in protecting its relationships with its customers and drivers. Driver acknowledges that in the course of the independent contractor relationship with Company, Driver will be introduced to and given access to valuable business relationships Company has developed with customers through substantial effort and time. (As used in Section 13, the term “Company” shall mean and include the Company, Licensor and their respective affiliates). Therefore:
(a) Driver agrees and covenants that during the Term of this Agreement and for a period of one (1) year following the expiration or termination of this Agreement for any reason, Driver will not, directly or indirectly, on behalf of Driver or for or on behalf of or in conjunction with any other person or entity; (i) solicit or provide Transportation Services from any person or entity for whom Driver (or any Authorized Driver Employee) performed Transportation Services on behalf of Company during the Term of this Agreement; or (ii) solicit any person or entity who provided Transportation Services on behalf of the Company during the Term of this Agreement to perform Transportation Services for or on behalf of Driver or any other person or entity.
(b) In the performance of this Agreement you may have access to or may be exposed to, directly or indirectly, confidential information of the Company (“Confidential Information”). Confidential Information includes Company Data, including but not limited to information regarding Riders and drivers performing services for Riders, and the transaction volume, marketing and business plans, business, financial, technical, operational and such other non-public information of each party that Company considers as being proprietary or confidential or of which the other party should reasonably know that it should be treated as confidential.
(c) Driver acknowledges and agrees that: (i) all Confidential Information shall remain the exclusive property of the Company; (ii) Driver shall not use Confidential Information for any purpose except in furtherance of this Agreement; (iii) Driver shall not disclose Confidential Information to any third party, except to Driver’s employees, officers, contractors, agents and service providers, as applicable (“Permitted Persons”) as necessary to perform Driver’s obligations under this Agreement, provided Permitted Persons are bound in writing to obligations of confidentiality and non-use no less protective than the terms hereof; and (iv) Driver shall return or destroy all Confidential Information of the Company upon the termination or expiration of this Agreement or at the request of the Company (subject to applicable law and, with respect to Company, its internal record-keeping requirements).
(d) Confidential Information does not include any information to the extent it: (i) is or becomes part of the public domain through no act or omission on the part Driver; (ii) was possessed by Driver prior to the date of this Agreement without an obligation of confidentiality; (iii) is disclosed to Driver by a third party having no obligation of confidentiality with respect thereto; or (iv) 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 Driver party a reasonable opportunity to contest or limit such required disclosure.
(e) Driver agrees that the non-solicitation and confidentiality covenants set forth in this Section 13 of this Agreement are reasonable and necessary for the protection of Company’s interests and are not unduly restrictive of Driver. Driver further agrees that the Company’s remedy at law for breach of such covenants will be inadequate, and that Company shall be entitled to an injunction which may, among other things, restrain Driver from rendering any service, or other action that would breach this Agreement. The election of any one or more remedies by Company shall not constitute a waiver of the right to pursue other available remedies. In the event Company obtains an injunction, the duration of the covenants herein shall be computed from the date such relief is granted, reduced by the time period between termination of this Agreement, by either party, and the date of the first violation of the covenant by Driver. The parties further agree that should any aspect of this Section 13 be determined to be unenforceable under applicable law, the arbitrator or court, as the case may be, shall be entitled to modify such covenant(s) to the extent necessary to comply with applicable law.
(f) Driver agrees that the covenants set forth in this Paragraph 13 shall be construed as an agreement independent of any other provision in any other agreement by, between, among, or affecting Company and Driver, and the existence of any claim or cause of action of Driver against Company, whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement of this Agreement, including the non-solicitation provisions herein.14. Indemnification and Hold Harmless.
Driver understands and agrees that Driver will be liable for payment of all traffic, motor vehicle and/or TLC summonses or violations that Driver or any person employed or engaged by Driver may receive in connection with the operation of his/her vehicle(s) and that Driver must indemnify the Company for any such summonses that the Company may receive due to any violation which is the result of any act or omission by Driver or any person employed or engaged by Driver. In the event that the Company pays for any summonses that the Company may receive due to any such violation, Driver must fully reimburse and indemnify the Company. Driver specifically authorizes the Company to deduct any monies due to the Company from Driver from any payments otherwise due to Driver from the Company.
Driver further agrees to protect, defend, indemnify and hold Company, and its parent, affiliates, successors, assigns, heirs, and each of its shareholders, directors, officers, employees, insurers, agents, and representatives (including, without limitation, attorneys and financial representatives) (collectively, the “Indemnified Parties”), harmless from and against any and all claims, demands, actions, suits, proceedings, demands, liabilities, losses, assessments, judgments, arbitration awards, damages, costs or expenses of any kind or nature whatsoever, including any Indemnified Party’s attorneys’ fees and costs, at all levels (including, without limitation of the foregoing, those relating to actual or alleged death or injury to individuals and damage to property), actually or allegedly, directly or indirectly, arising or resulting from or connected with:
(a) Driver’s performance or failure to honor any promises made herein, or Driver’s performance or failure to perform the Transportation Services under this Agreement, including but not limited to any liability arising out of accidents in which the Driver or any person or entity engaged by Driver is involved while performing the Transportation Services;
(b) The omission or commission of any act, lawful or unlawful, by Driver or any employee or person engaged by Driver, whether or not such act is within the scope of the agency relationship with such employee or agent;
(c) Any misrepresentation, breach of warranty or nonfulfillment or nonperformance of any agreement, covenant, term or condition by Driver under this Agreement. Driver also agrees to pay any Indemnified Party the amount which would then be required to put such Indemnified Party in the position that it or he or she would have been in had such representation or warranty been true, correct and complete, or had such agreement, term or condition been performed, complied with or fulfilled;
(d) The failure or alleged failure of Driver to comply with applicable laws, statutes, ordinances, governmental administrative orders, rules or regulations; or
(e) Any acts or omissions by any employee or person engaged by Driver which if committed by Driver would constitute a breach of this Agreement.
Driver further acknowledges and agrees that Company shall have no liability for and shall not provide Workers’ Compensation coverage for Driver or any of Driver’s employees or agents, including Authorized Driver Employees, for any injuries sustained while performing any Driving Services pursuant to this Agreement. Driver acknowledges and agrees that Company may choose its attorneys to represent the Indemnified Parties in defense of any claim, demand or action for which Driver has agreed to indemnify the Indemnified Parties hereunder. The parties agree that this indemnification and hold harmless provision shall survive the expiration or termination of this Agreement for any reason. 15. Termination.
(a) Either party may terminate this Agreement by giving the other party oral or written notice of intent to terminate at least ten (10) days prior (the “Notice Period”) to the date of such termination (the “Termination Date”). Company shall continue to pay Driver any fees due for Driving Services completed up to and through the Termination Date, provided Driver continues to perform the Driving Services contemplated by this Agreement in a manner satisfactory to Company to be in compliance with standards set forth in Sections 8 and 9 of this Agreement during such Notice Period.
(b) Company may terminate this Agreement at any time without notice for Cause. For purposes of this Agreement, “Cause” shall include without limitation: (i) any act of dishonesty, misconduct, fraud, moral turpitude, disloyalty, neglect, traffic violations or inappropriate behavior towards passengers of Company; (ii) failure on the part of Driver to perform the Driving Service Jobs contemplated by this Agreement in a manner satisfactory to Company (iii) failure of Driver or Driver’s Vehicle to be in compliance with standards set forth this Agreement; or (iv) any other breach by Driver or Driver’s employees or agents including any Authorized Driver Employee of any provision of this Agreement or the Radio Rights Agreement, if the Vehicle if affiliated with the Company’s Black Car Base. If this Agreement is terminated for Cause, no compensation of any kind shall be due to Driver beyond the fees due through and including the Termination Date, less any amounts owed to Company.
(c) This Agreement shall automatically terminate upon the termination of the Radio Rights Agreement. 16. Notice.
Any notice required hereunder or which either party may wish to give to the other shall be in writing, unless otherwise provided herein, and delivered personally or sent by certified mail, postage prepaid, return receipt requested, to the addresses of the Parties written above, or such other address as may be designated in writing by one party to the other, from time to time. Notice shall be deemed given when delivered in person or, if mailed, on the third (3rd) business day following the date on which it was deposited in the mail. 17. WAIVER OF JURY TRIAL.
DRIVER HEREBY KNOWINGLY AND VOLUNTARILY WAIVES THE RIGHT TO A JURY TRIAL FOR ANY CLAIM THAT ARISES AT ANY TIME OUT OF THIS AGREEMENT, THE RADIO RIGHTS AGREEMENT OR THE BUSINESS RELATIONSHIP BETWEEN COMPANY AND DRIVER, WHETHER BASED ON A CLAIM OR COUNTERCLAIM, REGARDLESS OF THE NATURE OF THE CLAIM OR COUNTERCLAIM, INCLUDING CLAIMS UNDER TORT, CONTRACT, STATUTE, OR COMMON LAW.18. Governing Law
(a) This Agreement shall be interpreted and construed in accordance with, and shall be governed by, the laws of the State of New York applicable to contracts negotiated and fully performed in the State of New York, regardless of the place of execution or of the places of performance and without regard to the conflicts of law provisions of any jurisdiction. Subject to Section 19(b), each of the parties to this Agreement hereby irrevocably submits to the non-exclusive jurisdiction of the state and federal courts located in the State of New York, County of New York in connection with any claim or controversy arising under or in connection with this Agreement. Each party to this Agreement agrees that it will not assert the defense of forum non conveniens in connection with any proceeding commenced hereunder. 19. Arbitration; Class Action Waiver.
(a) Other than claims by Company regarding the intellectual property rights of the Company or Licensor and any action for injunctive relief or specific performance as provided for in Section 13, which shall be determined in a court of law, any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Company will be subject to arbitration pursuant to Section 19(b).
(b) Agreement to Arbitrate Important Note Regarding this Agreement to Arbitrate:
• Arbitration is a process of private dispute resolution that does not involve the courts, a judge, or a jury. Instead, the Parties’ dispute is decided by a private arbitrator (the “Arbitrator”) selected by the Parties using the process described below.
• The Arbitrator will have exclusive authority, to the exclusion of any court, to resolve any and all disputes over the validity and enforceability of any part of this agreement to arbitrate.
• IMPORTANT: This agreement to arbitrate will require you to resolve any claim that you may have against the Company or any of its affiliates, including Licensor, on an individual basis pursuant to the terms of the Agreement. This agreement to arbitrate precludes you from bringing any class, collective, or representative action against the Company or any of its affiliates including Licensor. It also precludes you from participating in or recovering relief under any current or future class, collective, or representative action brought by someone else against the Company or any of its affiliates including Licensor. IN THAT REGARD, DRIVER UNDERSTANDS AND ACKNOWLEDGES THAT BY SIGNING THIS AGREEMENT DRIVER SPECIFICALLY WAIVES ANY RIGHT TO PARTICIPATE IN ANY CLASS ACTION OR COLLECTIVE ACTION AS AGAINST THE COMPANY, REGARDLESS WHETHER IN COURT OR IN ARBITRATION. IF AT ANY TIME YOU ARE DEEMED A MEMBER OF ANY CLASS CREATED BY ANY COURT, ARBITRATOR OR ANY OTHER TRIBUNAL, YOU WILL “OPT OUT” OF SUCH CLASS AT THE FIRST OPPORTUNITY, AND SHOULD ANY THIRD PARTY PURSUE ANY CLAIMS ON YOUR BEHALF YOU SHALL WAIVE YOUR RIGHTS TO MONETARY RECOVERY WITH RESPECT TO SUCH CLAIMS. • You may opt out of this agreement to arbitrate by so indicating at the time you enter into the Agreement, by clicking or checking the opt-out box below. Subject to Section 19(a) the parties agree that, pursuant to the Federal Arbitration Act (the “FAA”), any and all disputes between you and the Company, or any of the Company’s affiliates, including Licensor, including, but not limited to, disputes in connection with the performance of Transportation Services or in connection with any future relationship of any kind between you and the Company, will be subject to binding arbitration governed and settled by an impartial independent Arbitrator appointed by the American Arbitration Association in New York and the determination of the Arbitrator shall be final and binding (except to the extent there exist grounds for vacatur of an award under applicable arbitration statutes). The agreement to arbitrate contained in this Section 19(b) shall remain in full force after expiration or termination of this Agreement. The place of arbitration shall be the Borough of Manhattan, the City of New York. To the fullest extent permitted by law, the Arbitrator shall apply the commercial arbitration rules of the American Arbitration Association and Title 9 of the U.S. Code, except to the extent that such rules conflict with the provisions of this Section 19(b) in which event the provisions of this Section 19(b) shall control. If you initiate arbitration under this Agreement, you must pay the first $150 of any filing fee charged by the American Arbitration Association. The Company will advance all other fees and expenses of the Arbitrator and of the American Arbitration Association. THE PARTIES WAIVE ANY RIGHT TO LITIGATE ANY CONTROVERSIES, DISPUTES, OR CLAIMS ARISING OUT OF THIS AGREEMENT IN A COURT OF LAW (EXCEPT AS PROVIDED IN SECTION 19(a)). ALL PARTIES SHALL HAVE THE RIGHT TO BE REPRESENTED BY LEGAL COUNSEL AT ARBITRATION. THE ARBITRATOR SHALL HAVE THE POWER TO PERMIT REASONABLE DISCOVERY. THE ARBITRATOR’S DECISION SHALL BE IN WRITING AND SHALL CONTAIN FINDINGS OF FACT AND CONCLUSIONS OF LAW. THE ARBITRATOR’S DECISION SHALL BE FINAL, SUBJECT ONLY TO REVIEW PURSUANT TO THE FAA. THE ARBITRATOR SHALL HAVE EXCLUSIVE AUTHORITY, TO THE EXCLUSION OF ANY COURT, TO RESOLVE ANY AND ALL DISPUTES OVER THE VALIDITY AND ENFORCEABILITY OF ANY PART OF THIS AGREEMENT TO ARBITRATE. THE ARBITRATOR SHALL HAVE NO AUTHORITY TO AWARD PUNITIVE, CONSEQUENTIAL, SPECIAL OR INDIRECT DAMAGES. TO THE EXTENT PERMITTED BY APPLICABLE LAW, OTHER THAN FOR CLAIMS OF INDEMNITY UNDER SECTION 10 HEREIN, ARBITRATION MUST BE INITIATED WITHIN ONE (1) YEAR FROM THE DATE A CLAIM HERETOFORE AROSE OR HEREAFTER ARISES OR SHALL FOREVER BE WAIVED AND ALL OTHER PROCEEDINGS BARRED. You hereby acknowledge that you have read and understand Section 19(b), as well as all the other Sections of this Agreement, and have been given the opportunity to ask questions and consult with an attorney. 20. Specific Performance and Equitable Relief.
The Company shall be entitled to compel performance by Driver of Driver’s obligations pursuant to this Agreement and to restrain any violation or threatened violation of this Agreement, without the requirement to post a bond or other security.21. Assignability.(a) By Driver.
Driver may assign this Agreement with the prior written consent of the Company, which may be withheld by the Company for any reason. Any approved assignee of the Driver shall agree to comply with the terms of this Agreement. This Agreement shall be binding on the Driver and Driver’s personal representatives or successors and permitted assigns. (b) By Company.
This Agreement shall inure to the benefit of Company, Company’s affiliates, and their respective successors, assigns, parents, subsidiaries, joint ventures and related entities, regardless of whether such entity is in existence at the time of this Agreement or formed thereafter. Driver hereby consents to enforcement of this Agreement by Company, any affiliate, successor, assignee, parent, subsidiary, joint venturer or related entity.22. Disclaimer of Warranties.
YOU ACKNOWLEDGE AND AGREE THAT COMPANY MAKES NO WARRANTY, EXPRESS OR IMPLIED, REGARDING THE APP, OR ANY SERVICES TO BE PROVIDED BY COMPANY OR ANY OF ITS AFFILIATES EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT AND YOU WAIVE ANY WARRANTY OF MERCHANTABILITY, OR OF FITNESS FOR A PARTICULAR PURPOSE. COMPANY AND ITS AFFILIATES PROVIDE, AND YOU ACCEPT, THE COMPANY SERVICES, AND APP ON AN “AS IS” AND “AS AVAILABLE” BASIS. COMPANY AND ITS AFFILIATES DO NOT REPRESENT, WARRANT OR GUARANTEE THAT YOUR ACCESS TO OR USE OF THE COMPANY SERVICES, APP: (A) WILL BE UNINTERRUPTED OR ERROR FREE; OR (B) WILL RESULT IN ANY REQUESTS FOR TRANSPORTATION SERVICES. COMPANY AND ITS AFFILIATES FUNCTION AS AN ON-DEMAND LEAD GENERATION AND RELATED SERVICE AND MAKE NO REPRESENTATIONS, WARRANTIES OR GUARANTEES AS TO THE ACTIONS OR INACTIONS OF THE RIDERS WHO MAY REQUEST OR RECEIVE TRANSPORTATION SERVICES FROM YOU, AND COMPANY AND ITS AFFILIATES DO NOT SCREEN OR OTHERWISE EVALUATE RIDERS. BY USING THE COMPANY SERVICES AND 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 COMPANY SERVICES OR THE APP. COMPANY AND ITS AFFILIATES EXPRESSLY DISCLAIM ALL LIABILITY FOR ANY ACT OR OMISSION OF YOU, ANY RIDER OR OTHER THIRD PARTY. 23. Limitation of Liability.
THE COMPANY AND ITS AFFILIATES 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 COMPANY’S OBLIGATIONS TO PAY AMOUNTS DUE TO YOU PURSUANT TO SECTION 4 AND SECTION 5 ABOVE, BUT SUBJECT TO ANY LIMITATIONS OR OTHER PROVISIONS CONTAINED IN THIS AGREEMENT WHICH ARE APPLICABLE THERETO.24. Miscellaneous.
(a) Failure to Enforce. Failure of Company to enforce or otherwise act with respect to any of its rights hereunder or with respect to Driver shall not be construed as a waiver, nor prevent Company from thereafter enforcing strict compliance with any and all terms of this Agreement.
(b) Integration. This Agreement contains the entire agreement between the Parties relating to the matters set forth herein and supersedes all prior agreements relating thereto, including the Driver Equipment Use and Conditions Consent Form, if previously signed by Driver. This Agreement may only be modified by a writing signed by both Driver and Company.
(c) Severability. The Parties hereto agree that if any provision in this Agreement is held to be invalid, illegal, or unenforceable, either legislatively or judicially, such provision will be modified so as to be enforceable, or shall be severed herefrom, and the remainder of this Agreement will continue to be valid and enforceable.
(d) Survival. Driver’s post-termination obligations provided in this Agreement shall survive termination of this Agreement and remain in full force and effect thereafter.
(e) 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.
You acknowledge that you have read and understand the contents of this Agreement, that you have received a copy of it and that you agree to be bound by it.