DRIVER SERVICES AGREEMENT
Effective Date: March 6, 2019
This Driver Services Agreement (this “Agreement”) constitutes a legal agreement between you, an individual (“you”), on the one hand, and, on the other hand, Curb Mobility, LLC, a Delaware limited liability company, and, solely with respect to your operation of a New York City livery or black car to perform Transportation Services booked, arranged or paid for via the Booking Platform, Curb Transportation Services, LLC, a Delaware limited liability company (collectively, “Platform Provider”).
THIS IS A BINDING CONTRACT; PLEASE READ IT CAREFULLY BEFORE AGREEING.
BY ENTERING INTO THIS AGREEMENT, WHAT YOU ARE AGREEING TO INCLUDES THE FOLLOWING:
- WHAT PORTION OF EACH FARE FOR A TRIP YOU PERFORM IS PAYABLE TO YOU, AND WHAT PORTION IS PAYABLE TO PLATFORM PROVIDER OR OTHER THIRD PARTIES, AND HOW AND WHEN YOUR PORTION WILL BE PAID TO YOU (SEE SECTION 4), INCLUDING APPLICABLE TRANSACTION FEES (SEE SECTION 4.5) AND REFERRAL FEES (SEE SECTION 4.6);
- ALL DISPUTES BETWEEN YOU AND PLATFORM PROVIDER WILL BE RESOLVED BY BINDING ARBITRATION (AS SET FORTH AND SUBJECT TO THE TERMS OF SECTION 15.3), AND YOU ARE WAIVING ANY AND ALL RIGHTS TO A JURY TRIAL. IF YOU DO NOT WISH TO BE SUBJECT TO ARBITRATION, THEN YOU SHOULD NOT USE THE SERVICES;
- AS BETWEEN YOU AND PLATFORM PROVIDER, YOU ARE AN INDEPENDENT CONTRACTOR AND YOU ARE NOT AN EMPLOYEE OR AGENT OF PLATFORM PROVIDER (SEE SECTIONS 2.5 AND 13). AS A RESULT YOU ARE NOT ENTITLED TO WORKERS COMPENSATION INSURANCE OR OTHER EMPLOYMENT BENEFITS FROM PLATFORM PROVIDER OR ITS CONTRACT PARTNERS;
- YOU WILL INDEMNIFY AND DEFEND PLATFORM PROVIDER AND ITS AFFILIATES AND CONTRACT PARTNERS, AND HOLD THEM HARMLESS, WITH RESPECT TO ANY CLAIMS ARISING FROM ACCIDENTS OR INCIDENTS OCCURRING IN CONNECTION WITH ANY TRIP YOU PERFORM (SEE SECTION 8.5); AND
- LIMITATIONS ON PLATFORM PROVIDER’S LIABILITY TO YOU (SEE SECTION 11).
In order to use the Services (defined below), you must agree to the terms and conditions set forth in this Agreement. Upon your acceptance of and assent to (electronic or otherwise) this Agreement, you and Platform Provider shall be bound by the terms and conditions set forth herein.
IMPORTANT: PLEASE NOTE THAT TO USE THE SERVICES, YOU MUST AGREE TO THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT. BY VIRTUE OF YOUR ACCEPTANCE OF AND ASSENT TO THIS AGREEMENT, WHETHER ELECTRONIC OR OTHERWISE, AND/OR YOUR USE OF ANY OF THE SERVICES, YOU WILL BE ACKNOWLEDGING THAT YOU HAVE READ AND UNDERSTOOD ALL OF THE TERMS OF THIS AGREEMENT (INCLUDING THE ARBITRATION PROVISION) AND HAVE TAKEN TIME TO CONSIDER THE CONSEQUENCES OF THIS IMPORTANT BUSINESS DECISION.
You are a provider of ground transportation services and desire to enter into this Agreement for the purpose of accessing and using Platform Provider’s Booking Services (defined below) and/or Payment Services (defined below).
Platform Provider provides lead generation and other Booking Services to providers of ground transportation services. Platform Provider’s Booking Services enable an authorized transportation provider to seek, receive and fulfill requests for ground transportation services from an authorized user of Platform Provider’s Booking Platform (defined below), including Platform Provider’s Curb® mobile application and web-based ride booking tools.
Platform Provider also provides payment processing, payment remittance and other Payment Services (defined below) to providers of ground transportation services. Platform Provider’s Payment Services enable an authorized transportation provider to accept payment for his, her or its ground transportation services via credit card, debit card or other Electronic Payment (defined below) when authorized by the applicable holder of the account being charged. Such Payment Services may be provided to and used by an authorized transportation provider via Platform Provider’s Booking Platform, including any Driver App (as defined below).
YOU ACKNOWLEDGE AND AGREE AS FOLLOWS: (A) PLATFORM PROVIDER IS A TECHNOLOGY SERVICES PROVIDER THAT DOES NOT PROVIDE TRANSPORTATION SERVICES; AND, (B) WITH RESPECT TO YOUR USE OF PAYMENT SERVICES, NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT TO THE CONTRARY, YOU, AS THE PROVIDER OF TRANSPORTATION SERVICES, ARE THE MERCHANT WHO IS ACCEPTING PAYMENT FOR THE TRANSACTION OF BUSINESS WITH CONSUMERS.
1.1. “AAR Trip” means an instance of completed Transportation Services for which the applicable Fare is payable by the New York City Transportation Authority as part of its Access-A-Ride paratransit program.
1.2. “Affiliate” means, with respect to any specified person or entity, any other person or entity that, directly or indirectly, controls, is under the control of, or is under common control with such specified person or entity.
1.3. “Affiliated Base” means, with respect to any New York City black car or livery, the For-Hire Base with which such black car or livery has a Base Affiliation (as defined in TLC Rules).
1.4. “App Payment” has the meaning set forth in Section 4.2.
1.5. “Booking Platform” means any platform, system, software applications, methods, tools or services provided or authorized by Platform Provider that enable users thereof to electronically hail or summon, or otherwise arrange for a ride in, or pay the Fare for Trips provided in, for-hire vehicles (e.g., taxicabs, liveries, black cars, etc.), including, without limitation, any such platform, system, software application, method, tool or service operating on a mobile computing device (e.g., smart phone), desktop computing device, in a mobile “app,” via a web browser and/or via another means of electronic communication (e.g., SMS text messaging).
1.6. “Booking Services” means Platform Provider’s lead generation and related services that enable transportation providers to seek, receive and/or fulfill requests for transportation services made by Users seeking transportation services, which Booking Services include Platform Provider’s software, websites, and related support services systems, as may be updated or modified from time to time.
1.7. “City Addendum” means an addendum to this Agreement setting forth additional, supplemental or alternative Territory-specific terms, as updated by Platform Provider from time to time.
1.8. “Contract Partner” means any third party organization that has contracted with Platform Provider or its Affiliates to engage third party transportation providers to provide Transportation Services to or for persons designated by such entity.
1.9. “Device” means a Platform Provider Device, a Fleet Device or Your Device, as the case may be.
1.10. “Dispatch Association” means a dispatch association, dispatch network, radio network, for-hire vehicle base or similar organization that dispatches or otherwise operates or manages vehicles for-hire and with which a Vehicle you use to provide Transportation Services is affiliated.
1.11. “Driver App” means a Driver Ehail App or a Driver Payment App, as the case may be.
1.12. “Driver Ehail App” means a software application provided by Platform Provider that enables you to access the Booking Services for the purpose of seeking, receiving and fulfilling User requests for transportation services, as may be updated or modified from time to time.
1.13. “Driver Payment App” means a software application provided by Platform Provider that enables you to access the Payment Services for the purpose of accepting payment of Fares via credit card, debit card or other Electronic Payment as authorized by the applicable payment account holder.
1.14. “Driver ID” means (as applicable) the identification and password key that may be assigned by Platform Provider to you that enables you to use and access any Driver App.
1.15. “Effective Date” is the “Effective Date” first set forth above.
1.16. “Electronic Payment” means payment via credit card, debit card or other authorized non-cash means.
1.17. “Fare” has the meaning set forth in Section 4.1.
1.18. “Fare Calculation” has the meaning set forth in Section 4.1.
1.19. “Fee” means a Transaction Fee or a Referral Fee, as the case may be.
1.20. “Fleet Device” means a mobile computing device (e.g., smart phone or tablet computer) to which you are provided use or access by your Vehicle Owner or the Dispatch Association with which your Vehicle is associated for the purpose of, among other things, enabling you to access or use any Driver App.
1.21. “For-Hire Base” has the meaning ascribed thereto in the TLC Rules.
1.22. “Hack License” means any and all license(s), permit(s), registration(s) approval(s) and/or consents required by applicable law, rules or regulations for a person to obtain and/or maintain for himself or herself in order for him or her to legally operate a Vehicle and provide Transportation Services in the Territory (e.g., hack license, public chauffeur license, etc.).
1.23. “Medallion” means any and all license(s), permit(s), registration(s), approval(s) and/or consent(s) required by applicable law, rules or regulations for a Vehicle Owner to obtain and/or maintain in order for him, her or it to legally operate a Vehicle and provide Transportation Services in the Territory.
1.24. “Payment Services” mean Platform Provider’s payment services as described in Section 4 below, and related support services systems, as may be updated or modified from time to time.
1.25. “Platform Provider Device” means a mobile computing device (e.g., smart phone or tablet computer) to which you are provided use or access directly (i.e., not through a Vehicle Owner or Dispatch Association) by Platform Provider for the purpose of, among other things, enabling you to access or use any Driver App.
1.26. “Services” means Booking Services and/or Payment Services, as the case may be.
1.27. “Remittal Amount” has the meaning set forth in Section 4.2.
1.28. “Referral Fee” has the meaning set forth in Section 4.6.
1.29. “Services Data” means all data related to the access and use of the Services hereunder, including, without limitation, (A) all data related to Users (including User Information), (B) all data related to the provision of Transportation Services in connection with, or as a result of, the Services and/or the Driver App, and (C) the Driver ID.
1.30. “Supplemental Terms” has the meaning set forth in Section 14.2.
1.31. “Surcharge” means any applicable tax, assessment, fee, surcharge or other amount required by applicable law or regulation to be added to or assessed on Fares and/or Transportation Services as reasonably determined by Platform Provider based on available information.
1.32. “TLC” means the New York City Taxi and Limousine Commission or any successor agency.
1.33. “TLC Rules” means the rules promulgated by the TLC in effect as of the Effective Date.
1.34. “Territory” means the city or metropolitan area in the United States in which you provide Transportation Services.
1.35. “Tolls” means any applicable road, bridge, ferry, tunnel or airport charges and fees, including inner-city congestion, environmental or similar charges as reasonably determined by Platform Provider based on available information.
1.36. “Transaction Fee” has the meaning set forth in Section 4.5.
1.37. “Transportation Services” means transportation of a person or goods from one location to another.
1.38. “Trip” has the meaning set forth in Section 4.1.
1.39. “Trip Request” means a User request for Transportation Services.
1.40. “User” means a person or entity authorized to use the Booking Platform for the purpose of obtaining Transportation Services.
1.41. “User Information” means information about a User made available to you in connection with such User’s request for and/or use of Transportation Services provided or to be provided by you, which User Information may include a User’s name, pick-up location, contact information and/or photo.
1.42. “Vehicle” means a taxicab, livery vehicle, black car, limousine and/or other for-hire vehicle that (A) is duly licensed and authorized to operate as such in the Territory, (B) is lawfully in your possession and control during the period for which you are using such vehicle to provide Transportation Services, and (C) meets the then-current Platform Provider requirements for a Vehicle being used in connection with the Booking Services.
1.43. “Vehicle Owner” means, with respect to any Vehicle, the person(s) or entity(ies) that own, control or manage such Vehicle and/or the license or authorization to operate such Vehicle as a public vehicle for hire.
1.44. “Your Device” means a mobile computing device (e.g., smartphone or tablet computer) owned or controlled by you that (A) meets the then-current Platform Provider specifications for mobile computing devices used in connection with the Services, and (B) on which a Driver App has been installed as duly authorized by Platform Provider.
2. Your Use of the Services
2.1. Driver ID. Platform Provider may issue you a Driver ID to enable you to access and use the Driver App on a Device in accordance with this Agreement, which Driver ID may, as determined by Platform Provider, be your Hack License number. Platform Provider reserves the right to deactivate your Driver ID and/or otherwise deactivate your use of the Services at any time for any reason, including, without limitation, if you have not, via a Driver App, consistently or professionally (A) accepted and processed Electronic Payments and/or (B) accepted and/or fulfilled Trip Requests. You agree that you will maintain your Driver ID in confidence and not share your Driver ID with any other person or entity. You will immediately notify Platform Provider of any actual or suspected breach or improper use or disclosure of your Driver ID or any Driver App.
2.2. Request for and Provision of Transportation Services. When the Driver Ehail App is active, Trip Requests may appear to you via the Driver Ehail App. If you accept any such Trip Request, you acknowledge and agree as follows: (A) you will provide Transportation Services to the applicable User and/or such User’s authorized passengers in accordance with this Agreement, applicable law and regulation, and industry-best service standards; (B) you will not charge the User or any passenger an amount greater than the applicable Fare for the resulting Trip; (C) the User may elect to cancel the Trip Request at any time prior to commencing a Trip; (D) the User may be provided with certain information about you, including your Hack License information, full name, contact information, photo, location, and/or your Vehicle’s make, Medallion number or identifier, and/or license plate number. It is recommended that you wait at least ten (10) minutes for a User to show up at the requested pick-up location. You will obtain the destination from the User, either in person upon pickup or from the Driver App if the User elects to enter such destination. As between Platform Provider and you, you acknowledge and agree that: (a) you shall be solely responsible for determining the most effective, efficient and safe manner to perform each Trip; and (b) except for the Booking Services, or any Platform Provider Devices or Fleet Devices (if applicable), you shall provide all necessary equipment, tools and other materials, at your own expense, necessary to perform Transportation Services.
2.3. User Information. You may be provided with certain User Information via the Driver App, including the User’s first name, pickup location, drop-off location and/or contact information. User Information is only provided to you for the sole purpose of enabling you to fulfill such Users Trip Request and you acknowledge and agree that you may not and shall not store any such User Information or contact or otherwise use any such User Information for any other purpose whatsoever.
2.4. Your Relationship with Users. You acknowledge and agree that your provision of Transportation Services to Users creates a direct business relationship between you and the User. Platform Provider is not responsible or liable for the actions or inactions of a User in relation to Transportation Services, your activities or your Vehicle, including the failure of any User to tender payment of any Fare or other amount. You shall have the sole responsibility for any obligations or liabilities to Users or third parties that arise from your provision of Transportation Services. You acknowledge and agree that you are solely responsible for taking such precautions as may be reasonable and proper (including maintaining adequate insurance that meets the requirements of all applicable laws) regarding any acts or omissions of a User or third party. You acknowledge and agree that Platform Provider may release your contact and/or insurance information to a User upon such User’s reasonable request. You acknowledge and agree that, unless specifically consented to by a User, you may not transport or allow inside your Vehicle individuals other than a User and any individuals authorized by such User during the performance of Transportation Services for such User. You acknowledge and agree that all Users should be transported directly to their specified destination, as directed by the applicable User, without unauthorized interruption or unauthorized stops.
2.5. Your Relationship with Platform Provider. You acknowledge and agree that Platform Provider’s provision to you of the Driver App and/or the Services creates a direct business relationship between Platform Provider and you. Platform Provider 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 Transportation Services, your acts or omissions, or your operation and maintenance of your Vehicle. You retain the sole right to determine when and for how long you will utilize the Driver App and/or the Services. You retain the option, via the Driver App, to attempt to accept or to decline or ignore a Trip Request, or to cancel an accepted Trip Request via the Driver App, subject to Platform Provider’s then-current cancellation policies. With the exception of any signage required by local law or permit/license requirements, Platform Provider shall have no right to require you to: (a) display Platform Provider’s or any of its Affiliates’ names, logos or colors on your Vehicle(s); or (b) wear a uniform or any other clothing displaying Platform Provider’s or any of its Affiliates’ names, logos or colors. You acknowledge and agree that you have complete discretion to provide Transportation Services or otherwise engage in other business or employment activities. For the sake of clarity, you understand that you retain the complete right to; (i) use other software application services in addition to the Booking Services; and (ii) engage in any other occupation or business. Platform Provider retains the right to, at any time at Platform Provider’s sole discretion, deactivate or otherwise restrict you from accessing or using the Driver App and/or the Services in the event of a violation of this Agreement, your disparagement of any Platform Provider Booking Platform or Services, your disparagement of Platform Provider or any of its Affiliates, your act or omission that causes harm to Platform Provider’s or its Affiliates’ or partners’ brands, reputation or business as determined by Platform Provider in its sole discretion, or for any other reason at the reasonable discretion of Platform Provider.
2.6.1. You acknowledge and agree that a User, after receiving Transportation Services, may be prompted to provide a rating of you, your Vehicle and/or such Transportation Services and, optionally, to provide comments or feedback about you, your Vehicle and/or such Transportation Services.
2.6.2. You acknowledge that Platform Provider desires that Users have access to high-quality services via any Platform Provider Booking Platform. In order to continue to receive access to the Driver App and the Booking Services, you may be required to maintain an average rating by Users that exceeds the minimum average acceptable rating established by Platform Provider for your Territory, as may be updated from time to time by Platform Provider in its sole discretion (“Minimum Average Rating”). In the event your average rating falls below the Minimum Average Rating, Platform Provider will notify you and may provide you, in Platform Provider’s discretion, a limited period of time to raise your average rating above the Minimum Average Rating. If you do not increase your average rating above the Minimum Average Rating within the time period allowed (if any), Platform Provider reserves the right to deactivate your access to the Driver App and the Booking Services. Additionally, you acknowledge that your repeated failure to accept Trip Requests while you are logged in to the Driver App creates a negative experience for Users of the Booking Platform. If you repeatedly fail to accept Trip Requests, Platform Provider reserves the right to deactivate your access to the Driver App and the Booking Services.
2.6.3. Platform Provider and its Affiliates reserve the right to use, share and display User ratings and comments of and about you, your Vehicle and/or your Transportation Services in any manner in connection with the business of Platform Provider and its Affiliates and partners. You acknowledge and agree that Platform Provider and its Affiliates are distributors (without any obligation to verify) and not publishers of User ratings and comments.
2.7.1. If you elect to use any Platform Provider Devices, Platform Provider will supply you with such Platform Provider Devices and provide the necessary wireless data plan for such Devices, provided that Platform Provider may, at its discretion, require reimbursement from you for the costs associated with the wireless data plan of each Platform Provider Device and/or request a deposit for each Platform Provider Device. You agree that: (a) Platform Provider Devices may only be used for the purpose of enabling your access to the Services; and (b) Platform Provider Devices may not be transferred, loaned, sold or otherwise provided in any manner to any party other than you. Platform Provider Devices shall at all times remain the property of Platform Provider, and upon termination of this Agreement or your termination or deactivation, you agree to return to Platform Provider the applicable Platform Provider Devices within ten (10) days. You agree that failure to timely return any Platform Provider Devices, or damage to Platform Provider Devices outside of “normal wear and tear,” will result in the forfeiture of related deposits and/or you being charged the replacement costs for such damaged Platform Provider Devices, and you agree to pay any such charges.
2.7.2. If you elect to use Your Devices: (i) you are responsible for the acquisition, cost and maintenance of Your Devices as well as any necessary wireless data plan; and (ii) Platform Provider shall make available the Driver App for installation on Your Device. Platform Provider hereby grants you a personal, non-exclusive, non-transferable license to install and use the Driver App on Your Device solely for the purpose of providing Transportation Services. You agree to not provide, distribute or share, or enable the provision, distribution or sharing of, the Driver App (or any data associated therewith) with any third party. The foregoing license grant shall immediately terminate and you will delete and fully remove the Driver App from Your Devices in the event that you cease to provide Transportation Services via the Booking Services using Your Device. You agree that: (i) use of the Driver App on Your Device requires an active data plan with a wireless carrier associated with Your Device, which data plan will be provided by you at your own expense; and (ii) use of the Driver App on Your Device as an interface with the Booking Services may consume very large amounts of data through the data plan. PLATFORM PROVIDER ADVISES YOU THAT YOUR DEVICE ONLY BE USED UNDER A DATA PLAN WITH UNLIMITED OR VERY HIGH DATA USAGE LIMITS, AND PLATFORM PROVIDER SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY FEES, COSTS, OR OVERAGE CHARGES ASSOCIATED WITH ANY DATA PLAN.
2.8. Location Based Services. You acknowledge and agree that your geo-location information must be provided to the Booking Services via a Device in order to provide Transportation Services. You acknowledge and agree that: (A) your geo-location information will be monitored and tracked by the Booking Services when you are logged into the Driver App and available to receive Trip Requests or when you are providing Transportation Services; and (B) the approximate location of your Vehicle will be displayed to the User before and during the provision of Transportation Services to such User. In addition, Platform Provider and its Affiliates and partners may monitor, track and share your geo-location information obtained by the Driver App and Device for their technical, marketing and commercial purposes, including to provide and improve their products and services.
3. You and Your Vehicle
3.1. Your Requirements. You acknowledge and agree that at all times you shall: (A) hold and maintain (i) a valid Hack License with the appropriate level of certification to operate your Vehicle, and (ii) all licenses, permits, approvals and authority applicable to you and/or your Vehicle that are necessary to provide Transportation Services to third parties in the Territory; (B) possess the appropriate and current level of training, expertise and experience necessary or desirable to provide Transportation Services in a professional manner with all due skill, care and diligence; and (C) maintain high standards of professionalism, service and courtesy. You acknowledge and agree that you may be subject to certain background and driving record checks from time to time in order to qualify to provide, and remain eligible to provide, Transportation Services. You acknowledge and agree that Platform Provider reserves the right, at any time in Platform Provider’s sole discretion, to deactivate or otherwise restrict you from accessing or using the Driver App or the Services if you fail to meet the requirements set forth in this Agreement.
3.2. Vehicle Requirements. You acknowledge and agree that your Vehicle shall at all times be: (A) properly registered and licensed to operate as a passenger transportation vehicle in the Territory; (B) owned or leased by you, or otherwise in your lawful possession; (C) suitable for performing the passenger transportation services contemplated by this Agreement; and (D) maintained in good operating condition, consistent with industry safety and maintenance standards for a Vehicle of its kind and any additional standards or requirements in the applicable Territory, and in a clean and sanitary condition.
3.3. Documentation. To ensure your compliance with all requirements in Sections 3.1 and 3.2 above, you must provide Platform Provider with written copies of all such licenses, permits, approvals, authority, registrations and certifications prior to your provision of any Transportation Services. Thereafter, you must submit to Platform Provider written evidence of all such licenses, permits, approvals, authority, registrations and certifications as they are renewed. Platform Provider shall, upon request, be entitled to review such licenses, permits, approvals, authority, registrations and certifications from time to time, and your failure to provide or maintain any of the foregoing shall constitute a material breach of this Agreement.
4. Financial Terms
4.1. Fare Calculation. Subject to applicable law, rules or regulations, you are entitled to charge a fare for each instance of completed Transportation Services (each such instance, a “Trip”) provided to a User that is booked, arranged or hired via the Booking Services (such fare, the “Fare”), where such Fare is either (A) a fixed amount mutually agreed by you and Platform provider prior to your commencement of a Trip, or (B) calculated based upon a base fare amount plus mileage and/or time amounts, as detailed for the applicable Territory (“Fare Calculation”). If the Vehicle used by you to provide Transportation Services is a taxicab, you acknowledge and agree that, unless otherwise determined by Platform Provider in accordance with applicable law, the Fare for any Trip shall be the fare calculated by the taximeter utilized by such taxicab, which taximeter must comply with all applicable law and regulation, and which compliance is your responsibility. Unless you have agreed to a fixed amount as the Fare, you may also be entitled to charge a User that you provide Transportation Services to for any Tolls or Surcharges incurred during or in connection with the provision of Transportation Services to such User. You: (i) appoint Platform Provider as your limited payment collection agent solely for the purpose of accepting the Fare and applicable Tolls and Surcharges from the User on your behalf via the payment processing functionality facilitated by the Services; and (ii) agree such payment made by a User to Platform Provider shall be considered the same as payment made directly by such User to you.
4.2. Your Payment.
4.2.1. Passenger Payment. Upon the completion of each Trip, the relevant passenger may pay for the applicable Fare, Tolls and Surcharges via the Booking Platform or a Driver Payment App. A payment made via the Booking Platform or a Driver Payment App is referred to herein as an “App Payment.”
4.2.2. Payment via Fleet Device. With respect to any App Payment made or processed via a Driver Payment App that you access via a Fleet Device, then, unless otherwise required by applicable law, rule or regulation or otherwise designated by the relevant Dispatch Association, (i) Platform Provider will remit the applicable Remittal Amount for such App Payment to such Dispatch Association within no more than five (5) business days and (ii) such Dispatch Association will remit the Remittal Amount to you, less any amounts you have agreed it may deduct, in accordance with its standard cashiering practices for payment of drivers. Notwithstanding the foregoing, in the event that (X) the relevant Dispatch Association, or applicable law or regulation requires, that you be paid directly, and (Y) you have completed and delivered to Platform Provider all forms required by Platform Provider for electronic funds transfer, then Platform Provider will remit the applicable Remittal Amount for an App Payment to you within five (5) business days of the date on which the App Payment is processed.
4.2.3. Payment via the Booking Platform, Your Device or a Platform Provider Device. With respect to any App Payment made or processed via the Booking Platform, or a Driver Payment App that you access via Your Device or a Platform Provider Device, then, if you have completed all forms required by Platform Provider for electronic funds transfer, Platform Provider will remit the Remittal Amounts due and payable to you no less frequently than once per calendar week.
4.2.4. New York City FHV Drivers. ONLY APPLICABLE TO NEW YORK CITY FOR-HIRE VEHICLE DRIVERS THAT PERFORM A TRIP USING A NEW YORK CITY LIVERY OR BLACK CAR. You understand and agree that, notwithstanding any provision of this Section 4.2 to the contrary, (i) the applicable Remittal Amount for any Trip may be paid to your Vehicle’s Affiliated Base, which Affiliated Base will then pay such amount to you, less any amounts you have agreed it may deduct, in accordance with its standard cashiering practices for payment of drivers, and (ii) any such payment to such Affiliated Base relieves Platform Provider of any obligation to pay such amount to you. For the avoidance of doubt, each of Platform Provider (in its capacity as a dispatching For-Hire Base) and the Affiliated Base is prohibited by TLC Rules from overcharging you, and, if you believe you have been overcharged by either Platform Provider or the Affiliated Base, you may make a complaint to the TLC either in writing or by telephone to 311.
4.2.5. Remittal Amount. “Remittal Amount” means, with respect to any App Payment, the applicable Fare, Tolls and Surcharges actually collected by Platform Provider from the relevant User, less the applicable Transaction Fee, Referral Fee, any Surcharges that Platform Provider or its Affiliates is required to collect and pay to any government agency or other third party, and any other fees set forth in an applicable City Addendum or that you may have otherwise agreed to pay to Platform Provider (e.g., mobile device usage charges, etc.).
4.3. Changes to Fare Calculation. Subject to applicable, law, rule and regulation, Platform Provider reserves the right to change the Fare Calculation at any time in Platform Provider’s discretion based upon local market factors, and Platform Provider will provide you with notice in the event of such change that would result in a change in the recommended Fare for each Trip. Continued use of the Booking Services after any such change in the Fare Calculation shall constitute your consent to such change.
4.4. Fare Adjustment. Platform Provider reserves the right to: (i) adjust the Fare for a particular Trip (e.g., you took an inefficient route, you fail to properly end a particular instance of Transportation Services in the Driver App, technical error in the Booking Services, etc.); or (ii) cancel the Fare for a particular Trip (e.g., User is charged for Transportation Services that were not provided, in the event of a User complaint, fraud, etc.). Platform Provider’s decision to reduce or cancel the Fare in any such manner shall be exercised in a reasonable manner.
4.5. Transaction Fee. In consideration of Platform Provider’s processing of App Payments and provision of limited payment collection agent services pursuant to Section 4.1, you agree to pay to Platform Provider a transaction fee on a per App Payment basis (“Transaction Fee”), which Transaction Fee, (i) if you are using a Fleet Device to access the Payment Services, shall be in an amount agreed with your Dispatch Association or your Vehicle Owner, or, (ii) if you are using Your Device or a Platform Provider Device to access the Payment Services, shall be the lesser of (A) an amount agreed by you and Platform Provider in a separate writing, (B) an amount set forth in the applicable City Addendum, (C) five percent (5%) of the amount of the applicable App Payment, and (D) the maximum amount allowed by applicable law or regulation.
4.6. Referral Fee. In consideration of Platform Provider’s provision of the Driver Ehail App and the Booking Services for your use and benefit, for each Trip booked, arranged or hired via the Booking Services you agree to pa Platform Provider a referral fee (a “Referral Fee”) in an amount equal to the sum of $0.25 + 5% of the applicable Fare, or such other amount that Curb either (i) agrees to in writing, or (ii) notifies you of prior to your acceptance of a Trip Request. The amount and calculation of the Referral Fee may be changed by Platform Provider from time to time in its sole discretion; provided that Platform Provider will provide you with written notice of any increase in the Referral Fee prior to any such increase taking effect. In the event that, for any Trip, the relevant Fare is not paid by App Payment, you agree and consent to Platform Provider deducting and collecting its Referral Fee for such Trip from any Remittal Amounts that may become due and payable to you thereafter.
4.7. Fee Changes. Platform Provider reserves the right to change the Transaction Fee or the Referral Fee at any time in Platform Provider’s discretion based upon local market factors; provided that Platform Provider will provide you with prior notice in the event of any such change. Continued use of the Services after any such change in the Transaction Fee or Referral Fee calculation shall constitute your consent to such change.
4.8. Cancellation/No-Show Charges. After accepting a Trip Request, you may elect to cancel such acceptance at any time prior to commencement of the related Trip. In the event that you cancel your acceptance of a Trip Request more than 60 seconds after acceptance, or you fail to pick up the passenger within a reasonable amount of time (other than as the result of passenger cancellation or no-show), Platform Provider may charge you a cancellation fee of up to ten dollars ($10). If charged, this cancellation fee shall be deemed the Referral Fee for the cancelled Transportation Services and you agree and consent to Platform Provider deducting and collecting such charge from any Remittal Amounts that may become due and payable to you thereafter.
4.9. Receipts. As part of the Services, Platform Provider provides you a system for the delivery of receipts for payment of Fares to Users. Upon your completion of Transportation Services for a User, and payment of the Fare by such User via App Payment, Platform Provider prepares an applicable receipt and issues such receipt to the User via email on your behalf. Such receipts may also be provided to you via email or online portal. Receipts include the breakdown of amounts charged to the User for Transportation Services and may include specific information about you, including your name, Hack License information, contact information and/or photo, as well as a map of the route you took. Any corrections to a User’s receipt must be submitted to Platform Provider in writing within three (3) business days after the completion of such Transportation Services. Absent such a notice, Platform Provider shall not be liable for any mistakes in or corrections to the receipt or for recalculation or disbursement of the Fare.
4.10. No Additional Amounts. You acknowledge and agree that, for the mutual benefit of the parties, through advertising and marketing, Platform Provider and its Affiliates or partners may seek to attract new Users to any Platform Provider Booking Platform and to increase existing Users’ use of a Platform Provider Booking Platform. You acknowledge and agree such advertising or marketing does not entitle you to any additional monetary amounts beyond the amounts expressly set forth in this Agreement.
4.11. Taxes. You acknowledge and agree that you are responsible for collecting and remitting all applicable gross receipts, sales and use, excise, value-added or any other transaction tax on or related to Fares or the provision of Transportation Services.
5. Proprietary Rights; License
5.1. License Grant. Subject to the terms and conditions of this Agreement, Platform Provider hereby grants you a revocable, non-exclusive, non-transferable, non-sublicensable, non-assignable license, during the term of this Agreement, to use the Services (including the Driver App on a Device) solely for the purpose of facilitating your provision of Transportation Services to Users and tracking resulting Fares and Fees. All rights not expressly granted to you are reserved by Platform Provider, its Affiliates and their respective licensors.
5.2. Restrictions. You shall not, and shall not allow any other party to: (a) license, sublicense, sell, resell, transfer, assign, distribute or otherwise provide or make available to any other party any of the Services, Driver Apps or any Platform Provider Devices in any way; (b) modify or make derivative works based upon the Services or Driver Apps; (c) improperly use the Services or Driver Apps, including creating Internet “links” to any part of the Services or Driver Apps, “framing” or “mirroring” any part of the Services or Driver Apps on any other websites or systems, or “scraping” or otherwise improperly obtaining data from the Services or Driver Apps; (d) reverse engineer, decompile, modify, or disassemble the Services or Driver Apps, 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 Services or Driver Apps 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 Services an automated program or script, including web spiders, crawlers, robots, indexers, bots, viruses or worms, or any program which may make multiple server requests per second, or unduly burden or hinder the operation and/or performance of the Services; or (iv) attempt to gain unauthorized access to the Services or its related systems or networks.
5.3. Ownership. The Services, Driver Apps and Services Data, including all intellectual property rights therein, and the Platform Provider Devices, are and shall remain (as between you and Platform Provider) the property of Platform Provider, its Affiliates or its or their respective licensors. Neither this Agreement nor your use of the Services, Driver Apps or Services Data conveys or grants to you any rights: (a) in or related to the Services, Driver Apps or Services Data, except for the limited license granted above; or (b) to use or reference in any manner Platform Provider’s, its Affiliates’ or its or their respective licensors’ company names, logos, product and service names, trademarks, services marks or other indicia of ownership.
6.1. Each party acknowledges and agrees that in the performance of this Agreement it may have access to or may be exposed to, directly or indirectly, confidential information of the other party (“Confidential Information“). Confidential Information includes Services Data, Driver IDs, User Information, and the transaction volume, marketing and business plans, business, financial, technical, operational and such other non-public information of each party that such party designates as being proprietary or confidential or of which the other party should reasonably know that it should be treated as confidential.
6.2. Each party acknowledges and agrees that: (a) all Confidential Information shall remain the exclusive property of the disclosing party; (b) it shall not use Confidential Information of the other party for any purpose except in furtherance of this Agreement; (c) it shall not disclose Confidential Information of the other party to any third party, except to its employees, officers, contractors, agents and service providers (“Permitted Persons“) as necessary to perform under this Agreement, provided Permitted Persons are bound in writing to obligations of confidentiality and non-use no less protective than the terms hereof; and (d) it shall return or destroy all Confidential Information of the disclosing party, upon the termination of this Agreement or at the request of the other party (subject to applicable law and, with respect to Platform Provider, its internal record-keeping requirements).
6.3. Notwithstanding the foregoing, Confidential Information shall not include any information to the extent it: (a) is or becomes part of the public domain through no act or omission on the part of the receiving party; (b) was possessed by the receiving party prior to the date of this Agreement without an obligation of confidentiality; (c) is disclosed to the receiving party by a third party having no obligation of confidentiality with respect thereto; or (d) is required to be disclosed pursuant to law, court order, subpoena or governmental authority, provided the receiving party notifies the disclosing party thereof and provides the disclosing party a reasonable opportunity to contest or limit such required disclosure.
7.1. Disclosure of Your Information. Subject to applicable law and regulation, Platform Provider and its Affiliates may, but shall not be required to, provide to you, a User, an insurance company and/or relevant authorities and/or regulatory agencies any information (including personal information (e.g., information obtained about you through any background check) and any Services Data) about you or any Transportation Services provided hereunder if: (a) there is a complaint, dispute or conflict, including an accident, between you and a User; (b) it is necessary to enforce the terms of this Agreement; (c) it is required, in Platform Provider’s or any Affiliate’s sole discretion, by applicable law or regulatory requirements (e.g., Platform Provider or its Affiliates receive a subpoena, warrant, or other legal process for information); or (d) it is necessary, in Platform Provider’s or any Affiliate’s sole discretion.
7.2. Information provided by you and collected about you may be transferred or accessed by Platform Provider and its Affiliates around the world, including in jurisdictions that may have less protective privacy laws than your country. Platform Provider and its Affiliates located in the U.S. abide by the Safe Harbor frameworks set forth by the U.S. Department of Commerce regarding the collection, use, and retention of personal information collected by organizations in the European Economic Area and Switzerland. You expressly consent to Platform Provider’s and its Affiliates’ use of location-based services and you expressly waive and release Platform Provider and its Affiliates from any and all liability, claims, causes of action or damages arising from your use of the Services, or in any way relating to the use of the geo-location and other location-based services.
7.3. Platform Provider and its Affiliates may collect your personal data during the course of your application for, and use of, the Services, which information may be stored, processed, and accessed by Platform Provider and its Affiliates for business purposes, including for marketing, lead generation, service development and improvement, analytics, industry and market research, and such other purposes consistent with Platform Provider’s and its Affiliates’ legitimate business needs. You expressly consent to such use of personal data.
8.1. You represent, warrant, covenant and agree that any Vehicle used by you to provide Transportation Services will be covered by and subject to a duly issued and effective liability insurance policy that provides protection against bodily injury and property damage to third parties at levels of coverage that satisfy the minimum requirements to operate a public vehicle for-hire within the Territory. This coverage must also include any no-fault coverage required by law or regulation in the Territory that may not be waived by an insured. You agree to provide Platform Provider and its Affiliates and Contract Partners a copy of the insurance policy, policy declarations, proof of insurance identification card and proof of premium payment for the insurance policy required in this Section 8.1 upon request. Furthermore, you must provide Platform Provider with written notice of cancellation of any insurance policy required by Platform Provider. Platform Provider shall have no right to control your selection or maintenance of your policy.
8.2. You agree to maintain during the term of this Agreement workers’ compensation insurance as required by all applicable laws in the Territory. If permitted by applicable law, you may choose to insure yourself against industrial injuries by maintaining occupational accident insurance in place of workers’ compensation insurance. Furthermore, if permitted by applicable law, you may choose not to insure yourself against industrial injuries at all, but do so at your own risk.
8.3. You understand and acknowledge that your personal automobile insurance policy may not afford liability, comprehensive, collision, medical payments, personal injury protection, uninsured motorist, underinsured motorist, or other coverage for the Transportation Services you provide. If you have any questions or concerns about the scope or applicability of your own insurance coverage, it is your responsibility, not Platform Provider’s, to resolve them with your insurer(s).
8.4. During the term of this Agreement, Platform Provider may (but has no obligation to) maintain insurance related to your provision of Transportation Services as determined by Platform Provider in its sole discretion, provided that Platform Provider and its Affiliates are not required to provide you with any specific insurance coverage for any loss to you or your Vehicle. You are required to promptly notify Platform Provider of any accidents that occur while providing Transportation Services and to cooperate and provide all necessary information related thereto.
8.5. You shall be liable for, and indemnify and defend (at Platform Provider’s option) Platform Provider and its Affiliates and Contract Partners (including its and their respective officers, directors, employees, agents, successors and assigns) from and against, and hold Platform Provider and its Affiliates and Contract Partners harmless from and against, any and all lawsuits, claims, proceedings, actions, judgments, liabilities, losses, costs or expenses (including attorneys’ fees and court or arbitration costs) suffered or incurred by Platform Provider or its Affiliates or Contract Partners (including its and their respective officers, directors, employees, agents, successors and assigns) as a result of or in connection with any accident or incident involving or arising from or in connection with the Transportation Services and/or your operation of any Vehicle, regardless of fault.
9. Representations and Warranties; Disclaimers
9.1. By You. You hereby represent and warrant that: (i) you own or are otherwise duly authorized to use any Vehicle you use to provide Transportation Services; (ii) you will not accept any Trip Request or perform any Transportation services if your Hack License, or your Vehicle’s Medallion or insurance coverage, has expired or has been suspended, revoked or terminated; (iii) you have full power and authority to enter into this Agreement and perform your obligations hereunder; (iv) you have not entered into, and, during the term of this Agreement, you will not enter into, any agreement that would prevent you from performing your obligations under, or otherwise complying with, this Agreement; and (v) you will comply with all applicable laws, rules and regulations in your performance of Transportation Services and use of the Services, including holding and complying with all permits, licenses, registrations and other governmental authorizations necessary to provide (1) Transportation Services using the Vehicles pursuant to this Agreement, and (2) Transportation Services to third parties in the Territory generally.
9.2. Disclaimer of Warranties. PLATFORM PROVIDER AND ITS AFFILIATES PROVIDE, AND YOU ACCEPT, THE SERVICES, DRIVER APPS AND/OR THE PLATFORM PROVIDER DEVICES ON AN “AS IS” AND “AS AVAILABLE” BASIS. PLATFORM PROVIDER AND ITS AFFILIATES DO NOT REPRESENT, WARRANT OR GUARANTEE THAT YOUR ACCESS TO OR USE OF THE SERVICES, DRIVER APPS OR THE PLATFORM PROVIDER DEVICES: (I) WILL BE UNINTERRUPTED OR ERROR FREE; OR (II) WILL RESULT IN ANY REQUESTS FOR TRANSPORTATION SERVICES. THE BOOKING SERVICES FUNCTION AS A LEAD GENERATION AND RELATED SERVICE ONLY AND PLATFORM PROVIDER MAKES NO REPRESENTATIONS, WARRANTIES OR GUARANTEES AS TO THE ACTIONS OR INACTIONS OF THE USERS WHO MAY REQUEST OR RECEIVE TRANSPORTATION SERVICES FROM YOU, AND PLATFORM PROVIDER AND ITS AFFILIATES AND PARTNERS DO NOT SCREEN OR OTHERWISE EVALUATE USERS. BY USING THE SERVICES AND DRIVER APP, YOU ACKNOWLEDGE AND AGREE THAT YOU MAY BE INTRODUCED TO A THIRD PARTY THAT MAY POSE HARM OR RISK TO YOU OR OTHER THIRD PARTIES. YOU ARE ADVISED TO TAKE REASONABLE PRECAUTIONS WITH RESPECT TO INTERACTIONS WITH THIRD PARTIES ENCOUNTERED IN CONNECTION WITH THE USE OF THE SERVICES OR DRIVER APPS. NOTWITHSTANDING PLATFORM PROVIDER’S APPOINTMENT AS YOUR LIMITED PAYMENT COLLECTION AGENT FOR THE PURPOSE OF ACCEPTING PAYMENT OF FARES, TOLLS AND/OR SURCHARGES ON YOUR BEHALF AS SET FORTH IN SECTION 4 ABOVE, PLATFORM PROVIDER AND ITS AFFILIATES AND PARTNERS EXPRESSLY DISCLAIM ALL LIABILITY FOR ANY ACT OR OMISSION OF YOU, ANY USER OR OTHER THIRD PARTY.
9.3. No Service Guarantee. PLATFORM PROVIDER AND ITS AFFILIATES DO NOT GUARANTEE THE AVAILABILITY OR UPTIME OF THE SERVICES OR DRIVER APPS. YOU ACKNOWLEDGE AND AGREE THAT THE SERVICES OR DRIVER APPS MAY BE UNAVAILABLE AT ANY TIME AND FOR ANY REASON (E.G., DUE TO SCHEDULED MAINTENANCE OR NETWORK FAILURE). FURTHER, THE SERVICES OR DRIVER APPS MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS, AND PLATFORM PROVIDER AND ITS AFFILIATES AND PARTNERS ARE NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGES, LIABILITIES OR LOSSES RESULTING FROM SUCH PROBLEMS.
10.1. You shall indemnify and defend (at Platform Provider’s option) Platform Provider and its Affiliates and Contract Partners (including its and their respective officers, directors, employees, agents, successors and assigns), and hold Platform Provider and its Affiliates and Contract Partners (including its and their respective officers, directors, employees, agents, successors and assigns) harmless, from and against any and all lawsuits, claims, proceedings, actions, judgments, liabilities, losses, costs or expenses (including attorneys’ fees and court or arbitration costs) suffered or incurred by Platform Provider or its Affiliates (including its or their respective officers, directors, employees, agents, successors and assigns) as a result of or in connection with: (A) your breach of your representations, warranties or obligations under this Agreement; or (b) a claim by a third party (including Users, regulators and governmental authorities) directly or indirectly related to your provision of Transportation Services or use of the Services, Driver Apps or any Device.
11. Limitation of Liability
11.1. NONE OF PLATFORM PROVIDER NOR ITS AFFILIATES OR CONTRACT PARTNERS (INCLUDING ITS OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUCCESSORS OR ASSIGNS) SHALL BE LIABLE UNDER OR IN RELATION TO OR IN CONNECTION WITH ANY OF THIS AGREEMENT, THE SERVICES, THE DRIVER APPS, ANY DEVICE OR ANY TRANSPORTATION SERVICES FOR ANY OF THE FOLLOWING, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF PLATFORM PROVIDER 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 PLATFORM PROVIDER’S OBLIGATIONS TO PAY AMOUNTS DUE TO YOU PURSUANT TO SECTION 4 ABOVE, BUT SUBJECT TO ANY LIMITATIONS OR OTHER PROVISIONS CONTAINED IN THIS AGREEMENT THAT ARE APPLICABLE THERETO, IN NO EVENT SHALL THE LIABILITY OF PLATFORM PROVIDER OR ITS AFFILIATES OR CONTRACT PARTNERS (INCLUDING ITS OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUCCESSORS AND ASSIGNS) UNDER OR IN CONNECTION WITH THIS AGREEMENT EXCEED THE AMOUNT OF REMITTAL AMOUNTS ACTUALLY PAID TO PLATFORM PROVIDER HEREUNDER IN THE TWELVE- (12-) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.
12. Term and Termination
12.1. Term. This Agreement shall commence on the date accepted and agreed to by you and shall continue until terminated as set forth herein.
12.2. Termination. Either party may terminate this Agreement: (a) without cause at any time upon seven (7) days prior written notice to the other party; (b) immediately, without notice, for the other party’s material breach of this Agreement; or (c) immediately, without notice, in the event of the insolvency or bankruptcy of the other party, or upon the other party’s filing or submission of a request for suspension of payment (or similar action or event) against the terminating party. In addition, Platform Provider may terminate this Agreement or deactivate your Driver ID and/or access to the Driver App and/or Services immediately, without notice, in the event you no longer qualify, under applicable law or the standards and policies of Platform Provider and its Affiliates or partners, to provide Transportation Services or to operate a Vehicle, or as otherwise set forth in this Agreement.
12.3. Effect of Termination. Upon termination of this Agreement, you shall: (a) promptly return to Platform Provider all Platform Provider Devices; and (b) immediately delete and fully remove the Driver App from any of Your Devices. Outstanding payment obligations and Sections 1, 2.3, 2.4, 2.5, 4.11, 5.3, 6, 7, 9, 10, 11, 12.3, 13, 14.6 and 15 shall survive the termination of this Agreement.
13. Relationship of the Parties
13.1. Except as otherwise expressly provided herein with respect to Platform Provider acting as your limited payment collection agent solely for the purpose of collecting payment from Users on your behalf, the relationship between the parties under this Agreement is solely that of independent contractors. The parties expressly agree that: (a) this Agreement is not an employment agreement, nor does it create an employment relationship, between you, on the one hand, and, on the other, Platform Provider or any of its Affiliates or Contract Partners; and (b) no joint venture, partnership, or agency relationship exists between you, on the one hand, and, on the other, Platform Provider or any of its Affiliates or Contract Partners.
13.2. You have no authority to bind Platform Provider or its Affiliates or Contract Partners and you undertake not to hold yourself out as an employee, agent or authorized representative of Platform Provider or its Affiliates or Contract Partners or the Booking Platform. Where, by implication of mandatory law or otherwise, you may be deemed an agent or representative of Platform Provider, you undertake and agree to indemnify and defend (at Platform Provider’s option) Platform Provider and its Affiliates and Contract Partners, and hold Platform Provider and its Affiliates harmless, from and against any lawsuit, claim, proceeding, action, judgment, liabilities, losses, costs or expenses (including attorneys’ fees and court or arbitration costs) suffered or incurred by Platform Provider or its Affiliates or Contract Partners as a result of or in connection with any claims by any person or entity based on such implied agency or representative relationship.
14. Miscellaneous Terms
14.1. Modification. Platform Provider reserves the right to modify the terms and conditions of this Agreement at any time, effective upon publishing an updated version of this Agreement on a website for any Driver App through which you are provided with Services and/or providing you with notice of such modified terms and conditions via email or on a Device. Platform Provider reserves the right to modify any information referenced at hyperlinks from this Agreement from time to time. You hereby acknowledge and agree that, by using the Services, or downloading, installing or using any Driver App, you are bound by any future amendments and additions to this Agreement, information referenced at hyperlinks herein, or documents incorporated herein, including with respect to Fare Calculations and Fees. Continued use of the Services or any Driver App after any such changes shall constitute your consent to such changes. Unless changes are made to the arbitration provisions herein, you acknowledge and agree that modification of this Agreement does not create a renewed opportunity to opt out of arbitration.
14.2. Supplemental Terms. A City Addendum specific to the Territory and/or other supplemental terms may apply to your access to and use of the Services and/or any Driver App, such as use policies or terms related to certain features and functionality, which may be modified from time to time (“Supplemental Terms”). You may be presented with certain Supplemental Terms from time to time. Supplemental Terms are in addition to, and shall be deemed a part of, this Agreement. Supplemental Terms shall prevail over this Agreement in the event of a conflict.
14.3. Severability. If any provision of this Agreement is or becomes invalid or non-binding, the parties shall remain bound by all other provisions hereof. In that event, the parties shall replace the invalid or non-binding provision with provisions that are valid and binding and that have, to the greatest extent possible, a similar effect as the invalid or non-binding provision, given the contents and purpose of this Agreement.
14.4. Assignment. Neither party may assign or transfer this Agreement or any of its rights or obligations hereunder, in whole or in part, without the other party’s prior written consent; provided, however, that, notwithstanding the foregoing, Platform Provider may assign or transfer this Agreement or any or all of its rights or obligations under this Agreement from time to time without your consent as follows: (A) to an Affiliate; or (B) to an acquirer of all or substantially all of Platform Provider’s equity or all or substantially all of Platform Provider’s business and assets related to the Booking Services or the Payment Services.
14.5. Entire Agreement. This Agreement, including all Supplemental Terms, constitutes the entire agreement and understanding of the parties with respect to its subject matter and replaces and supersedes all prior or contemporaneous agreements or undertakings regarding such subject matter. In this Agreement, the words “including” and “include” mean “including, but not limited to.”
14.6. 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.
14.7. Notices. Any notice delivered by Platform Provider to you under this Agreement will be delivered by email to the email address associated with your account or by posting on the portal available to you as part of the Services. Any notice delivered by you to Platform Provider under this Agreement will be delivered by you to Platform Provider at the following address: Curb Mobility, LLC, 11-11 34th Avenue, Long Island City, New York 11106; Attention: Legal Department. Additional Territory-specific notices may be required from time to time.
15. Governing Law; Arbitration
15.1. The interpretation of this Agreement shall be governed by the laws of the State of New York, without regard to the choice or conflicts of law provisions of any jurisdiction. Subject to Section
15.2 below, any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Services shall be subject to the exclusive jurisdiction of the state and federal courts located in the City and County of New York, New York. However, neither the choice of law provision regarding the interpretation of this Agreement nor the forum selection provision is intended to create any other substantive right to non-New Yorkers to assert claims under New York law, whether that be by statute, common law, or otherwise. These provisions are only intended to specify the use of New York law to interpret this Agreement and the forum for disputes asserting a breach of this Agreement, and these provisions shall not be interpreted as generally extending New York law to you if you do not otherwise reside or provide services in New York. The failure of Platform Provider to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Platform Provider in a written document executed by an authorized representative of Platform Provider. 15.2. Other than disputes regarding the intellectual property rights of the parties or enforcing claims for injunctive or equitable relief, any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Services shall be subject to arbitration pursuant to Section 15.3 (the “Arbitration Provision”).
15.3. Arbitration Provision. Any dispute, claim, or controversy arising out of or relating in any way to this Agreement, or the interpretation, application, enforcement, breach, termination, or validity thereof (including any claim of inducement of this Agreement by fraud and including determination of the scope or applicability of this Arbitration Provision), or its subject matter (collectively, “Disputes”), shall be determined by binding arbitration before one (1) arbitrator. The arbitration shall be administered by JAMS (Judicial Arbitration & Mediation Services) and conducted in accordance with the expedited procedures set forth in the JAMS Streamlined Arbitration Rules & Procedures rules. Those rules are available here: http://www.jamsadr.com/rules-streamlined-arbitration/
Important Note Regarding this Arbitration Provision:
- Arbitration does not limit or affect the legal claims you may bring against Platform Provider. Agreeing to arbitration only affects where any such claims may be brought and how they will be resolved.
- Arbitration is a process of private dispute resolution that does not involve the civil courts, a civil judge, or a jury. Instead, any dispute between the parties is decided by a private arbitrator selected by the parties using the process set forth below. Other arbitration rules and procedures are also set forth herein.
- Unless the law requires otherwise, as determined by the Arbitrator based upon the circumstances presented, you will be required to split the cost of any arbitration with Platform Provider.
- IMPORTANT: This Arbitration Provision will require you to resolve any claim that you may have against Platform Provider on an individual basis pursuant to the terms of this Agreement. This Arbitration Provision will preclude you from bringing any class, collective, or representative action against Platform Provider. It also precludes you from participating in or recovering relief under any current or future class, collective, or representative action brought against Platform Provider by someone else.
WHETHER TO AGREE TO ARBITRATION IS AN IMPORTANT BUSINESS DECISION. IT IS YOUR DECISION TO MAKE, AND YOU SHOULD NOT RELY SOLELY UPON THE INFORMATION PROVIDED IN THIS AGREEMENT AS IT IS NOT INTENDED TO CONTAIN A COMPLETE EXPLANATION OF THE CONSEQUENCES OF ARBITRATION. YOU SHOULD TAKE REASONABLE STEPS TO CONDUCT FURTHER RESEARCH AND TO CONSULT WITH OTHERS — INCLUDING, BUT NOT LIMITED TO, AN ATTORNEY — REGARDING THE CONSEQUENCES OF YOUR DECISION, JUST AS YOU WOULD WHEN MAKING ANY OTHER IMPORTANT BUSINESS OR LIFE DECISION.
How This Arbitration Provision Applies
This Arbitration Provision is governed by the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (the “FAA”) and evidences a transaction involving commerce. This Arbitration Provision applies to any dispute arising out of or related to this Agreement or termination of this Agreement and survives after this Agreement terminates. Nothing contained in this Arbitration Provision shall be construed to prevent or excuse you from utilizing any procedure for resolution of complaints established in this Agreement (if any), and this Arbitration Provision is not intended to be a substitute for the utilization of such procedures.
Except as it otherwise provides, this Arbitration Provision is intended to apply to the resolution of disputes that otherwise would be resolved in a court of law or before a forum other than arbitration. This Arbitration Provision requires all such disputes to be resolved only by an arbitrator through final and binding arbitration on an individual basis only and not by way of court or jury trial, or by way of class, collective, or representative action.
Such disputes include, without limitation, disputes arising out of or relating to interpretation or application of this Arbitration Provision, including the enforceability, revocability or validity of the Arbitration Provision or any portion of the Arbitration Provision. All such matters shall be decided by an Arbitrator and not by a court or judge.
Except as it otherwise provides, this Arbitration Provision also applies, without limitation, to disputes arising out of or related to this Agreement, and disputes arising out of or related to your relationship with Platform Provider, including termination of the relationship. This Arbitration Provision also applies, without limitation, to disputes regarding any city, county, state or federal wage-hour law, trade secrets, unfair competition, compensation, breaks and rest periods, expense reimbursement, termination, harassment and claims arising under the Uniform Trade Secrets Act, Civil Rights Act of 1964, Americans With Disabilities Act, Age Discrimination in Employment Act, Family Medical Leave Act, Fair Labor Standards Act, Employee Retirement Income Security Act (except for claims for employee benefits under any benefit plan sponsored by Platform Provider and covered by the Employee Retirement Income Security Act of 1974 or funded by insurance), Genetic Information Non-Discrimination Act, and state statutes, if any, addressing the same or similar subject matters, and all other similar federal and state statutory and common law claims.
This Agreement is intended to require arbitration of every claim or dispute that lawfully can be arbitrated, except for those claims and disputes that, by the terms of this Agreement, are expressly excluded from this Arbitration Provision (if any).
Limitations On How This Arbitration Provision Applies
- Claims for workers compensation, state disability insurance and unemployment insurance benefits shall not be subject to arbitration and the requirement to arbitrate set forth in this Arbitration Provision.
- Regardless of any other terms of this Arbitration Provision, claims may be brought before, and remedies awarded by, an administrative agency if applicable law permits access to such an agency notwithstanding the existence of an agreement to arbitrate. Such administrative claims include, without limitation, claims or charges brought before the Equal Employment Opportunity Commission (www.eeoc.gov), the U.S. Department of Labor (www.dol.gov), the National Labor Relations Board (www.nlrb.gov), or the Office of Federal Contract Compliance Programs (www.dol.gov/esa/ofccp). Nothing in this Arbitration Provision 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.
- Disputes that may not be subject to predispute arbitration agreement as provided by the Dodd-Frank Wall Street Reform and Consumer Protection Act (Public Law 111-203) are excluded from the coverage of this Arbitration Provision.
- Disputes regarding your or Platform Provider’s intellectual property rights.
- Enforcing claims for injunctive or equitable relief
- This Arbitration Provision shall not be construed to require the arbitration of any claims against a contractor that may not be the subject of a mandatory arbitration agreement as provided by section 8116 of the Department of Defense (“DoD”) Appropriations Act for Fiscal Year 2010 (Pub. L. 111-118), section 8102 of the Department of Defense (“DoD”) Appropriations Act for Fiscal Year 2011 (Pub. L. 112-10, Division A), and their implementing regulations, or any successor DoD appropriations act addressing the arbitrability of claims.
Selecting The Arbitrator and Location of the Arbitration
The Arbitrator shall be selected using the alternate strike method from a list of five (5) neutral arbitrators provided by JAMS. You will have the option of making the first strike.
The location of the arbitration proceeding shall be no more than 45 miles from the place where you last provided Transportation Services to a User under this Agreement, unless each party to the arbitration agrees otherwise in writing.
Starting The Arbitration
All claims in arbitration are subject to the same statutes of limitation that would apply in court. The party bringing the claim must demand arbitration in writing and deliver the written demand by hand, by recognized national courier (e.g., Federal Express, United Parcel Service, United States Postal Service, etc.) (postage paid and confirmation of delivery requested), or by email as an attachment thereto in portable document format (pdf), to the other party and to JAMS within the applicable statute of limitations period. The demand for arbitration shall include identification of the parties, a statement of the legal and factual basis of the claim(s), and a specification of the remedy sought. Any demand for arbitration made to Platform Provider shall be provided to:
Curb Mobility, LLC
11-11 34th Avenue
Long Island City, NY 11106
Attention: Legal Department – Driver Disputes.
The arbitrator shall resolve all disputes regarding the timeliness or propriety of the demand for arbitration. A party may apply to a court of competent jurisdiction for temporary or preliminary injunctive relief in connection with an arbitrable controversy, but only upon the ground that the award to which that party may be entitled may be rendered ineffectual without such provisional relief.
How Arbitration Proceedings Are Conducted
You and Platform Provider agree to resolve any dispute in arbitration on an individual basis only, and not on a class, collective, or private attorney general representative action basis. The Arbitrator shall have no authority to consider or resolve any claim or issue any relief on any basis other than an individual basis. If at any point this provision is determined to be unenforceable, the parties agree that this provision shall not be severable, unless it is determined that the arbitration may still proceed on an individual basis only.
While Platform Provider will not take any retaliatory action in response to any exercise of rights you may have under Section 7 of the National Labor Relations Act, if any, Platform Provider shall not be precluded from moving to enforce its rights under the FAA to compel arbitration on the terms and conditions set forth in this Agreement.
Paying For The Arbitration
Each party will pay the fees for his, her or its own attorneys, subject to any remedies to which that party may later be entitled under applicable law (i.e., a party prevails on a claim that provides for the award of reasonable attorney fees to the prevailing party). In all cases where required by law, Platform Provider will pay the arbitrator’s and arbitration fees. If, under applicable law, Platform Provider is not required to pay all of the Arbitrator’s and/or arbitration fees, such fee(s) will be apportioned equally between the parties or as otherwise required by applicable law. Any disputes in that regard will be resolved by the arbitrator.
The Arbitration Hearing And Award
The Parties will arbitrate their dispute before the Arbitrator, who shall confer with the Parties regarding the conduct of the hearing and resolve any disputes the Parties may have in that regard. Within 30 days of the close of the arbitration hearing, or within a longer period of time as agreed to by the Parties or as ordered by the arbitrator, any party will have the right to prepare, serve on the other party and file with the arbitrator a brief. The arbitrator may award any party any remedy to which that party is entitled under applicable law, but such remedies shall be limited to those that would be available to a party in his or her individual capacity in a court of law for the claims presented to and decided by the arbitrator, and no remedies that otherwise would be available to an individual in a court of law will be forfeited by virtue of this Arbitration Provision. The arbitrator will issue a decision or award in writing, stating the essential findings of fact and conclusions of law. Except as may be permitted or required by law, as determined by the arbitrator, neither a party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of all parties. A court of competent jurisdiction shall have the authority to enter a judgment upon the award made pursuant to the arbitration. The arbitrator shall not have the power to commit errors of law or legal reasoning, and the award may be vacated or corrected on appeal to a court of competent jurisdiction for any such error.
Enforcement Of This Arbitration Provision
This Arbitration Provision is the full and complete agreement relating to the formal resolution of disputes arising out of this Agreement. Except as otherwise stated above, in the event any portion of this Arbitration Provision is deemed unenforceable, the remainder of this Arbitration Provision will be enforceable.
By clicking “I accept” with respect to this Agreement, using any of the Services, or otherwise agreeing to be bound by the terms and conditions of this Agreement, you expressly acknowledge that (i) you have read, understood, and taken steps to thoughtfully consider the consequences of this Agreement, (ii) you agree to be bound by the terms and conditions of the Agreement, and (iii) you are legally competent to enter into this Agreement with Platform Provider.