DRIVER REGISTRATION TERM
This Agreement for Internet Advertising Services (the “Agreement”) is made BETWEEN: CHOOSE YOUR DRIVER the (“Advertising Service Provider”), a corporation organized and existing under the laws of the St. James, Jamaica AND (the “Driver”), a corporation organized and existing under the laws of St. James, Jamaica.
In consideration of the terms and covenants of this agreement, and other valuable consideration, the parties agree as follows:
- The Advertising Service Provider owns and operates an Internet Site located at www.CHOOSEYOURDRIVER.COM (the “Advertising Site”) which Advertising Site contains graphical and text-based descriptions of advertised services along with a hypertext link to the details of services within said site.
- ADVERTISING MATERIALS
- The Advertising Service Provider has the right and option to approve, in its absolute discretion, the content of any advertising material that the Driver submits if the Advertising Service Provider finds that it does not meet its Uniform Advertising Specification, if it is objectionable to the Advertising Service Provider in any way, if it contains false or misleading information, if it contains any illegal information, or for any other reason, in the Advertising Service Provider sole discretion. If the Advertising Service Provider rejects any adverting material that the Driver submitted, the Advertising Service Provider will notify the Driver.
The Advertising Service Provider has the right to terminate this Agreement if the Advertising Service Provider remove or fail to approve any materials that the Driver submits in which case any prepaid advertising fee shall be returned to Driver. The Driver will not have any damages or other remedies, in law or in equity against the Advertising Service Provider for failing to place or removing any advertising except for the return of any unused prepaid advertising fees.
- The Driver may periodically make changes to its advertising material which the Advertising Service Provider must also approve. The Advertising Service Provider will charge a fee at its standard fee schedule rate for making changes to the Driver advertising materials on the Advertising Service Provider’s site.
- SERVICES TO BE PROVIDED
- The Advertising Service Provider does not guarantee any given amount of Impressions to Driver’s page as a result of its advertising services unless a separate Impression Guarantee Addendum has been executed by both parties hereto.
- The Advertising Service Provider will use its reasonable efforts to make its Advertising Site available for display through the World Wide Web. The Advertising Service Provider is not responsible for periodic downtime for maintenance, backup, acts of God, and other circumstances beyond its control or which are a normal part of the Internet business.
- The Advertising Service Provider shall be responsible for tracking Impressions to the Driver page through the advertisements that are included on its site. The Advertising Service Provider will report this information via Email on request basis only. The Driver will agree to treat this information as confidential. The Driver may use it for its internal business and marketing planning, but may not disclose it to third parties without an advanced written consent.
- COMPENSATION, PAYMENT AND CANCELLATIONS
In consideration of its advertising services, the Driver agrees to pay the advertising fees as follows:
– For Basic Listing, 25% on total charges for services and representing the 25% deposit paid directly by guest booking via Advertising Service Provider website located at www.chooseyourdriver.com, balance on total is paid directly to driver by guest on arrival.
– For Premium Listing, 25% on total charges for services and representing the 25% deposit paid directly by guest booking via Advertising Service Provider website located at www.chooseyourdriver.com, balance on total is paid directly to driver by guest on arrival
- CHOOSE YOUR DRIVER COLLECT AND DRIVER COLLECT BOOKINGS
1. Compensation. For each transfer covered by a Standalone Booking,
Choose Your Driver will be entitled to compensation (the ” Compensation“) equal to the Compensation Percentage of the Service Price and Driver Fees. The Parties agree that the Compensation may be increased at Your discretion.
2. Choose Your Driver Collect Bookings. For each Choose Your Driver Collect Booking, Choose Your Driver will act as a facilitator of such booking. In this capacity, Choose Your Driver will collect advance payments from guests at the time of such booking in part or in full depending on guest’s preferred method. In respect of collection from guests, Choose Your Driver will observe either of the following method below.
- If guest choose to pay in part, the amount of 25% plus applicable local taxes will be charged to the guest credit/debit at the time of booking, this amount is remitted directly to Choose Your Driver and the balance of 75% is paid in cash (or electronics if the Driver has the facility to do so) directly to the Driver at the time of pick-up.
- If guest pays in full which is the cost for the services plus the applicable taxes, Choose Your Driver will remit 75% of the amount to the Driver via electronic bank transfer, credit/debit card or cash no more than 7 days after the Driver submits a verifiable invoice to Choose Your Driver.
- Choose Your Driver Collect
Booking, You will be entitled to an amount equal to the Service Price minus the Compensation of 25% commission for each service booked via our system. For each Choose Your Driver Collect Booking, Choose Your Driver shall remit to You the EC Remittance and Taxes paid by the guest (except to the extent Choose Your Driver is required to pay such Taxes directly to the applicable Tax authorities).
3. Payments for Choose Your Driver Collect Bookings. You may collect amounts due with respect to Choose Your Driver Collect Bookings via an electronic invoicing process
implemented by Choose Your Driver and made available to You. In the event Choose Your Driver makes available to You, and You elect to use, a single-use credit card system, then upon processing an Choose Your Driver Collect Booking, Choose Your Driver will notify You and provide
You with a single-use credit card. Following the guest’s checkout or, subject to Section C.2.b, after the guest’s cancellation or no-show, You will promptly charge such credit card for the EC Remittance and Taxes (except to the extent Choose Your Driver is required to pay such Taxes directly to the applicable Tax authorities). In the event Choose Your Driver makes available to You, and You elect to use, an alternate electronic invoicing process, then for each Choose Your Driver Collect Booking, You will provide Choose Your Driver an electronic invoice within twelve (12) months after the date of pick-up, cancellation or no-show. All invoices will be submitted electronically via Choose Your Driver’s then-current invoicing system, or as otherwise directed by Choose Your Driver. If You are unable to implement an electronic payment system, You may use a paper payment system with Choose Your Driver’s prior consent, and Choose Your Driver may implement a fee in respect of any such use of a paper payment system. Each invoice, whether or not submitted in electronic form, will specify, for each booking, the guest’s name, the Choose Your Driver booking ID, the pick-up and pick-up dates and/or the dates of any cancellation or no-show, the applicable Rate(s), Driver Fees and Taxes. Choose Your Driver will remit all undisputed amounts within thirty (30) days of receipt of an invoice submitted electronically. If Choose Your Driver has approved Your use of a paper invoice system, Choose Your Driver will remit all undisputed amounts within sixty (60) days of receipt of a paper invoice. If You do not charge the relevant single-use credit card or invoice Choose Your Driver in accordance with this Section A.3 for any amounts with respect to an Choose Your Driver Collect Booking within twelve (12) months of the date after pick-up, cancellation or no-show of such Choose Your Driver Collect Booking, then neither Choose Your Driver nor the relevant guest will have any further obligation with respect to such Choose Your Driver Collect Booking. You will apply each payment received to the specific invoice being paid, and You may not apply any payment received to any other invoiced amount or amount otherwise due. Choose Your Driver reserves the right to make changes or updates to its invoicing system, payment methods and/or invoicing requirements at any time.
- Driver Collect Bookings. For each Driver Collect Booking, Choose Your Driver will act as a facilitator of such booking, but Choose Your Driver will not collect any advance payments from guests at the time of such booking. You acknowledge that You will be responsible for collecting the relevant Service Price, Taxes, Driver Fees and any other amounts or charges (to the extent, if any, not included in the Service Price but due and payable from guests) directly from guests at the time of pick-up unless otherwise agreed by the Parties. For each Driver Collect Booking, You will pay to Choose Your Driver the Compensation of 25% commission plus any applicable taxes in the manner described in Section A.5.
5. Payments for Driver Collect Bookings. Choose Your Driver will submit invoices for Driver Collect Bookings to You through Choose Your Driver’s then-current invoicing system. You agree that payment for all invoices for Driver Collect Bookings shall be due upon receipt using one of the payment options available to You in Choose Your Driver System. If You are unable to access Choose Your Driver System, Your payment method will be determined by Choose Your Driver and communicated to You. You agree not to use a third party to process payments for Driver Collect Bookings on Your behalf without Choose Your Driver’s consent and Choose Your Driver may implement a fee in respect of any such use of a third party payment processor. You agree that if Your payment method results in Choose Your Driver incurring bank fees or other similar charges, You will reimburse Choose Your Driver for such bank fees or similar charges. Payments not made within fifteen (15) days of the date of the invoice may be subject to late charges equal to 5%, or the maximum amount permitted by law, whichever is lower, of the outstanding balance for each month or portion thereof the payment is overdue. Choose Your Driver shall be entitled to, and shall invoice You for, Compensation in the event of a no-show or cancellation or similar change to a booking, unless You have notified Choose Your Driver of the relevant no-show, cancellation or similar change in the manner and within the time period set forth in Choose Your Driver System, as the same may be updated by Choose Your Driver from time to time. Choose Your Driver also may contact guests to confirm the accuracy of any documentation submitted by You in connection with any such notice. Choose Your Driver reserves the right to make changes or updates to its invoicing system, payment methods and/or invoicing requirements at any time.
6. No Additional Expenditures. The Parties acknowledge and agree that the amounts received or retained by Choose Your Driver under this Contract adequately cover any marketing, IT and any other costs and expenses incurred by Choose Your Driver in the ordinary course of its business in relation to its facilitation of Bookings in accordance with the provisions of this Contract. The Parties further acknowledge that Choose Your Driver will not incur any exceptional and/or additional expenditure relating to procuring any Bookings for Your services without Your prior agreement to reimburse Choose Your Driver fully for any such exceptional and/or additional expenditure, e.g. in relation to any third party marketing costs to be incurred by Choose Your Driver specifically in connection with the promotion of Your services.
- GENERAL TERMS
1. Services, Rates and Availability
a. Services. You agree that You will allocate and reserve at least the Base Services for display on and booking through the Choose Your Driver System for each stay date capable of being booked during the Term. Adjustments to Base Services may be made as permitted in Choose Your Driver System or as mutually agreed by the Parties. In addition, during the Term, You agree that You will at all times make all un-booked services available for display on, and booking through the Choose Your Driver System (i.e., last service availability). The
Parties agree that Choose Your Driver will be permitted to make services available for booking in its discretion as Choose Your Driver Collect Bookings, Driver Collect Bookings, and/or Fenced Bookings.
b. Rates. You agree that the Rates and Rate Plans you provide to Choose Your Driver will be equal to or better than those made available through Your own or any third-party booking or distribution channels. Any rules, restrictions, policies, and/or conditions (including rules associated with cancellation) applicable to any service that You make available through the Choose Your Driver System shall be no more restrictive than those applicable to any comparable service that You make available through Your own or any third party booking or distribution channels. Subject to Sections B.2, C.3.b and C.3.e, and unless otherwise agreed, You instruct Choose Your Driver not to display
Standalone Bookings with a Service Price lower than the relevant Best Available Rate or, in the case of Standalone Fenced Bookings, not to
display with a Service Price lower than the relevant Best Available Rate reduced by the Fenced Booking Percentage. Subject to Sections C.3.b
and C.3.e, and unless otherwise agreed, You instruct Choose Your Driver not to display Package Bookings or Opaque Bookings with a Service Price lower than the Package Remittance. Subject to the foregoing sentence, You acknowledge that Choose Your Driver will determine the total price of any Package Booking at its sole discretion.
2. Guest Experience
a. Guest Experience. You acknowledge that You will not treat any guest that books a service through the Choose Your Driver System differently than You treat any other guest that books a service through Your own or any third-party booking or distribution channels, including, without limitation, with respect to the handling of overbooking (i.e. “walk”) situations, the allocation of service types (including, for the avoidance of doubt, with respect to views, bedding options, size of services, etc.), the provision of Driver service and the amenities available with the booked service type and the amount and charging of Driver Fees.
b. Cancellation. You agree that you will abide by our standard cancellation and no-show policies outlined in Section B.2.c offer to guest through the Choose Your Driver System will be at least as favorable as any cancellation or no show policies offered by You through Your own or any third-party booking or distribution channels. Subject to the terms and conditions of Your cancellation policy, Choose Your Driver reserves the right to cancel a Booking at any time. Except as may be made available to You in Choose Your Driver System, You shall not cancel any Booking and shall not encourage guests to cancel Bookings. Any Booking cancelled by Choose Your Driver and/or a guest will, at Choose Your Driver’s option, be reallocated as a Base Service unless Choose Your Driver already has filled the allocation of Base Services for the date that such Booking is cancelled. If You do not enter Your cancellation policy into Choose Your Driver System, Choose Your Driver’s default cancellation policy will apply. Choose Your Driver is entitled to the Compensation Percentage of any penalty amounts charged to guests for no-shows, cancellations or similar booking modifications.
- Cancellation: Guest must cancel at least 48 hours prior to service dates, otherwise, a penalty of 50% of service total booked will be charged to the guests, in the event where Choose Your Driver has this information, the penalty charged less 25% to Choose Your Driver will be remitted to the Driver. In the event, no credit card was used, Choose Your Driver will make every effort to collect penalty charge and remit to The Driver.
- No-Show: If the guest(s) did not cancel and does not show for scheduled pick-up time, 100% of total service rate will be charged to the guest and amount less 25% commission charge will be remitted to The Driver. A guest is consider to have No-Show after 24 hours have passed for schedule pick-up.
- Late or Early Arrival: If guest arrive early or late, such a guest must notify the Driver directly or contact Choose Your Driver’s support desk in writing at least 12 hours prior to scheduled pick-up time and date.
c. Re-assignments. If You are, or reasonably believe that You will be, unable to honor a Booking, You agree that You will immediately (i) notify Choose Your Driver of such inability, (ii) Re-assign the affected guest to a comparable vehicle with an equivalent or higher Choose Your Driver star class rating, (iii) pre-pay or make other arrangements to cover the service charges at such vehicle for the nights in question and all transportation and associated relocation costs to such vehicle, and (iv) waive any additional fees or other additional payments that would otherwise be payable to You by Choose Your Driver or the guest as a result of the Booking. Choose Your Driver reserves the right to perform items (ii) and/or (iii) above directly, in which case You agree to reimburse Choose Your Driver for all expenses (including any Taxes) incurred by Choose Your Driver in securing such alternative arrangements, including applicable service charges at the alternative vehicle and associated guest relocation costs
- d. Complaints. You agree to respond to any guest complaints relating to Your Vehicle in a prompt and reasonable manner. If a guest cancels all or part of a Booking as a result of dissatisfaction with Your amounts paid by such guest for such Booking, and You will reimburse
Choose Your Driver for any such refunded amounts within thirty (30) days of receipt of written request for reimbursement.
3. Loading and Display of Rates and Information
a. Vehicle Information; Choose Your Driver System. You agree to use Choose Your Driver System to enter or modify all relevant information relating to Rates, availability, applicable Tax rates, Driver Fees, Vehicle and Service Information, cancellation and no show policies, and/or to modify Your account information and preferred payment and notice practices, each to the extent necessary to enable Choose Your Driver to properly display relevant information about Your services and otherwise as permitted or required under this Contract. You acknowledge that You are responsible for the accuracy of all facts and information related to or provided by You that are entered into Choose Your Driver System or displayed on the Choose Your Driver System. You agree to advise Choose Your Driver immediately if any such information (including information related to the Vehicle) is incomplete or inaccurate.
b. Rate Information. You authorize Choose Your Driver to calculate on Your behalf and in accordance with this Contract, the Rates (as well as Service Prices), together with any Driver Fees, Taxes, or other amounts payable, based on information entered by You through Choose Your Driver System (or otherwise provided by You to Choose Your Driver in a manner acceptable to Choose Your Driver) and any such action by Choose Your Driver to derive such Rates, Driver Fees, Taxes, or other amounts on Your behalf shall be deemed to be Your action, for purposes
of this Contract. Notwithstanding the foregoing, You acknowledge that You will immediately notify Choose Your Driver if You believe that Choose Your Driver has incorrectly derived any Rates, Service Prices, fees, charges or other amounts relating to Your services. You agree to honor all Bookings made during the Term at the Rate in Choose Your Driver System and at the Service Price (together with the relevant Driver Fees and/or Taxes) shown on the Choose Your Driver System at the time such Booking occurred, including Bookings with stay-dates occurring after the expiration or termination of this Contract. You agree to update the Rates, applicable Tax rates and Driver Fees, (or the information
entered by You necessary for Choose Your Driver to derive them) as necessary and in accordance with this Contract. You agree that Your Rates and Driver Fees will not unlawfully increase in reaction to the occurrence or threatened occurrence of a Force Majeure Event. You accept that You will not require guests to pay any fees or surcharges relating to their payment process or method (e.g., guests will not be charged any fees or surcharges for credit or debit card payments).
c. Merchandising; Intellectual Vehicle. You grant Choose Your Driver and its Affiliates the worldwide, nonexclusive, royalty-free, fully paid right and license, in any and all media now known or hereafter discovered or developed, to use, reproduce, distribute and display the Vehicle and Service Information for purposes of identifying, promoting, merchandising and/or obtaining Bookings for the Vehicle. In addition, You agree to provide Choose Your Driver reasonable free access to the Vehicle in order to obtain images for purposes of identifying, promoting, merchandising and/or obtaining Bookings for the Vehicle. You represent and warrant that You and/or the Vehicle are the owner or authorized licensee of all Vehicle and Service Information and that such content, and Choose Your Driver’s and its Affiliates’ use, reproduction, distribution and display of such content, does not and will not violate the rights of any third party. To the extent Your
consent is required for Choose Your Driver to utilize the right and license above, You hereby represent that You have all necessary rights and provide Your consent and agree that Your consent may be shared directly with third parties. Any additional advertising or marketing to be performed for You or the Vehicle shall be governed by Choose Your Driver’s then-standard marketing terms and conditions. Choose Your Driver may remove any Vehicle or Service Information, or edit any Vehicle and Service Information that Choose Your Driver
believes to be inaccurate or inappropriate. This Contract does not grant to You or the Vehicle any ownership interest in, or any express or implied license or right to, any of the Materials or to any software or intellectual vehicle rights owned by or licensed to Choose Your Driver or its Affiliates. The Vehicle and Service Information You provide to Choose Your Driver under this Contract will be equal to or better than what You make available through Your own or any third-party booking or distribution channels.
d. Choose Your Driver Star Class Ratings. Subject to applicable laws and regulations, You agree that (i) Choose Your Driver will make the final determination of the Choose Your Driver star class rating assigned to the Vehicle, and (ii) the Choose Your Driver star class rating assigned to the Vehicle may be changed by Choose Your Driver from time to time in its sole discretion. To the extent You have an officially mandated star class rating, You agree to provide such star class rating, and its source, to Choose Your Driver.
e. Display; Special Programs and Discounts. Services displayed on the Choose Your Driver System will appear in an order determined by Choose Your Driver in its sole discretion. In addition, You agree Choose Your Driver and/or certain of its Affiliates may also on occasion offer discount pricing for Your services; provided that (i) any such offers shall be available with respect to a broad number of properties and not limited to the Vehicle and (ii) to the extent You and Choose Your Driver have not agreed otherwise with respect to any particular offer,
any such discount will be funded by a reduction to the Compensation otherwise payable by You to Choose Your Driver or retained by Choose Your Driver. At Your request and upon reasonable notice, Choose Your Driver will meet with You to discuss any such offers and Your participation in them. You acknowledge and agree that benefits offered to guests by Choose Your Driver and its Affiliates through their respective loyalty programs or through Driver service coupons shall not be a violation of this Contract.
4. Operational Matters
a. Booking Process. Choose Your Driver will provide notice of each Booking processed through the Choose Your Driver System. You will provide Choose Your Driver confirmation of receipt of every Booking notification within forty-eight (48) hours of Choose Your Driver’s notification being delivered to You. You must honor every Booking for which You receive a Booking notification.
b. Anti-Fraud Cooperation. You acknowledge that You are solely responsible for ensuring that the identification presented by any guest is
valid and matches the Booking information provided to You by Choose Your Driver. If a Party believes a Booking may be or is fraudulent, or certain data provided by a guest cannot be verified, then the Parties will work in good faith to address such fraudulent or potentially fraudulent Booking. In the event of a fraudulent or potentially fraudulent Booking, Choose Your Driver may cancel such Booking at any time. If cancellation of a fraudulent or potentially fraudulent Choose Your Driver Collect Booking, Package Booking or Opaque Booking occurs prior to or within two (2) hours after pick-up, neither Choose Your Driver nor any of its Affiliates shall be obligated to pay any cancellation fee or penalty. If the cancellation of a fraudulent or potentially fraudulent Choose Your Driver Collect Booking. Choose Your Driver nor any of its Affiliates shall have any liability to You in connection with any fraudulent or potentially fraudulent Driver Collect Bookings.
c. Personal Data and Security. Each Party agrees that it has in place and will maintain, or will establish and maintain, adequate security procedures and controls to prevent the unintended disclosure of, and the unauthorized access to or misappropriation of, any personal data or information of any guest. Each Party agrees that it will process, store, transmit and access any guest information in compliance with applicable law. Unless You receive consent directly from the guest, You and Your affiliates will not directly or indirectly engage in any solicited or unsolicited marketing, promotional, or similar communications with any guest that has booked a service through the Choose Your Driver System.
d. Health and Safety. At Choose Your Driver’s request, You agree to promptly provide Choose Your Driver with a copy of Your annual operating license and/or similar
certificate(s), if any, indicating Your compliance with the health and safety obligations required for You to operate legally in the jurisdictions in which You operate. In addition, Choose Your Driver may provide You with a health and safety self-assessment questionnaire from time to time, and You agree to supply the information requested in the self-assessment in a timely manner. Further, You agree to permit any employee of or consultant appointed by Choose Your Driver to carry out health and safety review of the Vehicle. If, as a result of a self-assessment or a health and safety inspection, Choose Your Driver recommends health and safety enhancements or changes for Vehicle, You agree that You will implement such recommendations within a timeframe to be mutually agreed by You and Choose Your Driver. In the event that You fail to comply with Your obligations under this Section C.4.d, Choose Your Driver may terminate this Contract immediately upon
written notice to You.
e. Taxes. (i) You acknowledge that You are solely responsible for the accuracy of Tax rate information, the identification of applicable Taxes and any changes to the Tax rates entered into Choose Your Driver System. You are responsible for accounting to the relevant tax authorities for any Taxes applicable to any amounts received by You for any Bookings and/or in consideration for Your services. Upon request, You will provide documentation to substantiate registration with and/or remittance of Taxes to the relevant taxing authorities. (ii) The Compensation is exclusive of any sales, value-added, turnover, withholding or other transaction-based tax in any country, state or locality, and where such tax applies it shall be paid to Choose Your Driver by You or retained by Choose Your Driver, as applicable. The Compensation shall be paid to Choose Your Driver in cleared funds, without any deduction or set-off, and exclusive of and without any deduction for, or on account of, any taxes, imports, duties, charges, fees or withholdings of any kind. In the event that You are required to make such a deduction or withholding, You agree that the Compensation will not be less than the Compensation that Choose Your Driver would have received had no deduction or
withholding been required. (iii) If requested by Choose Your Driver, You will promptly provide Choose Your Driver with valid tax invoices in respect of any transactions entered into under this Contract, where taxes are chargeable under applicable law. (iv) You shall deliver to Choose Your Driver, prior to receipt of any payment hereunder, a duly completed and signed copy of IRS Form W-9 or other applicable documentary evidence satisfactory to Choose Your Driver to establish that You are not subject to withholding or are entitled to an exemption from, or
reduction of, withholding tax, as applicable. Thereafter, You shall (A) promptly notify Choose Your Driver of any change in circumstances which would cause You to be subject to withholding or modify or render invalid any claimed exemption or reduction of withholding tax, and (B) take any action that may be necessary to avoid any requirement that Choose Your Driver make any deduction or withholding for taxes from amounts payable to You. If You fail to perform Your obligations under this Section C.4.e.iv, then Choose Your Driver shall be entitled to deduct and withhold from any payment to You such amounts as it is required to withhold under applicable law. All amounts withheld pursuant to this Section C.4.e.iv shall be treated as paid to You for purposes of Section A.3.
a. Confidentiality. The Parties agree that any confidential, proprietary, know-how or trade secret information of any Party in any form that is designated as “confidential” or that a reasonable person knows or reasonably should understand to be confidential (“Confidential
Information“) will only be used as specifically permitted by the terms and conditions of this Contract. Without the express written consent of the Party whose information will be disclosed, during and after the Term, no Party will disclose or allow the disclosure of any Confidential Information of another Party to any third party, except that a Party may disclose Confidential Information to its employees, directors, agents, independent contractors and consultants on a need-to-know basis, provided that said Party has executed appropriate written agreements with each such individual or entity sufficient to enable compliance with all the provisions of this Section. For the avoidance of doubt, “Confidential Information” includes, but is not limited to, information (i) provided by a guest in connection with any Booking, or (ii) provided by Choose Your Driver or any of its Affiliates, or otherwise obtained by You, in connection with this Contract, including without limitation, the terms and conditions of this Contract. “Confidential Information” does not include any information that (A) becomes publicly available without the receiving Party’s breach of any obligation owed to the disclosing Party, (B) was known to the receiving Party prior to the disclosing Party’s disclosure of such information, (C) became known to the receiving Party from a source other than the disclosing Party where such source did not breach an obligation of confidentiality owed to the disclosing Party, or (D) is independently developed by the receiving Party. A Party may disclose another Party’s Confidential Information if required to do so to comply with a court order or other government demand that has the force of law; provided, that prior to disclosure, You must seek the highest level of protection available and provide us with reasonable advance notice. All Confidential Information will remain the exclusive vehicle of the disclosing Party.
b. Disputes; Other Charges. If a dispute arises with respect to any payment obligation under this Contract, the Parties will work together in good faith to resolve such dispute, and until such dispute has been resolved in a manner satisfactory to the Parties, You will not (i) apply any payment received for any other Booking or invoice (or amounts owed to Choose Your Driver in respect of Driver Collect Bookings) to the disputed Booking or invoice, (ii) charge or attempt to charge the guest directly for the disputed amount, (iii) refuse to honor any guest’s Booking, or (iv) take any other action likely to interfere with the fulfillment or enjoyment of any guest’s Booking. You are responsible for any changes or services requested by a guest directly from You and You are solely responsible for collecting from the guest any charges for such changes or services.
c. Books and Records. Subject to the following sentences, Choose Your Driver’s books and records with respect to this Contract, including without limitation, any information contained in Choose Your Driver System or the Choose Your Driver System, or in any facsimile or electronic communication submitted by You or Choose Your Driver, will constitute evidence of the receipt by You of Bookings made by guests through the Choose Your Driver System and the amount of the applicable Compensation, EC Remittance or Package Remittance, as the case may be, in respect of such Bookings. Furthermore, You acknowledge that Choose Your Driver generally has no knowledge of (i) guests’ actual arrival or departure dates, (ii) any cancellation notice that may be given by guests directly to You, or whether any such cancellation notice as may be given is sufficient under Your policies to relieve guests (and Choose Your Driver) of all or any portion of the charges otherwise due to You, or (iii) any adjustment that may be negotiated by You directly with guests with respect to reductions in rate, duration of stay, or
otherwise. Accordingly, You agree that Choose Your Driver and its Affiliates shall be entitled to rely upon and accept as accurate any information relating to Bookings received by Choose Your Driver from You.
d. Limitations. (i) Choose Your Driver may, at any time and in its sole discretion, refuse to offer, display, or list for booking any of Your services made available by You through the Choose Your Driver System. Choose Your Driver makes no representations or warranties regarding the Choose Your Driver System or Your services, including any temporary or permanent interruption of the operation of the Choose Your Driver System, or with respect to the number, frequency, or type of services booked through the Choose Your Driver System. With respect to Bookings, nothing in this Contract constitutes a sale or rental of services to or by Choose Your Driver. (ii) Except as expressly described in this Contract, to the maximum extent permitted by law, You acknowledge that Choose Your Driver will not be liable for any
indirect, special, incidental, or other consequential damages arising out of or relating to this Contract or for any direct or indirect lost profits or revenue or business, or lost or corrupted data or lost anticipated savings or goodwill or reputation, including costs or expenses (including attorneys’ fees and expenses). (iii) Except as expressly described in this Contract, no Party makes any warranties of any kind, whether express, implied, statutory or otherwise, and each Party specifically disclaims all implied warranties, including any warranties of merchantability or fitness for a particular purpose, to the maximum extent permitted by applicable law. (iv) Nothing in this Contract shall limit or exclude either Party’s liability for fraud, death or personal injury caused by negligence, any other liability which cannot be limited by law, or any liability it has under an express obligation in this Contract to indemnify the other Party.
e. Representations and Warranties. In addition to any other representations and warranties made by You in this Contract, You hereby
represent and warrant that: (i) You have authorized the individual entering into this Contract on Your behalf to take such action on Your behalf, (ii) this Contract constitutes a valid and binding obligation enforceable against You in accordance with its terms, (iii) the performance of Your obligations under this Contract will not violate any agreement or obligation between You and any third party, (iv) Your performance under this Contract will comply with the terms of this Contract, and (v) You hold all licenses, permits and authorizations required to make Your services available for booking through the Choose Your Driver System and to otherwise comply with Your obligations under this Contract.
f. Insurance. You represent and warrant that You have liability insurance coverage in an amount that is consistent with best industry practice. To the extent permitted by law, You will either (i) name Choose Your Driver as an additional insured on any liability insurance policies on which You pay premiums, and deliver to Choose Your Driver certificates of insurance that verify compliance with the preceding clause, or (ii) provide other evidence of insurance acceptable to Choose Your Driver that indicates, in the event of a claim relating to this Contract, that Choose Your Driver or claims made by Choose Your Driver will be covered by Your insurance. You will cause Choose Your Driver to receive thirty (30) days prior written notice before such insurance is cancelled or expires. No later than ten (10) days prior to the date of cancellation or expiration of an existing insurance policy, You will deliver new certificates (or other evidence) of insurance to Choose Your Driver for any renewal policies. Choose Your Driver may terminate this Contract immediately upon written notice to You if You fail
to comply with this Section C.5.g.
h. Amendment. Choose Your Driver reserves the right to modify and impose new or additional terms and conditions to this Contract at any time. Choose Your Driver will provide written notice of any such changes to the terms in accordance with the notice provisions included in Section C.5.i of this Contract. If You do not accept such modifications or new or additional terms and conditions, You may terminate this Contract upon written notice to Choose Your Driver. Your failure to exercise Your right to terminate this Contract within thirty (30) days after notice of any modification or new or additional terms and conditions to this Contract will constitute Your acceptance of such changes. No
modification of this Contract by You shall be binding upon Choose Your Driver without its prior written consent.
The Advertising Service Provider will retain all proprietary rights in and to its respective sites and other proprietary materials such as copyrights, trademarks, trade secrets, patents and confidential information. The Advertising Service Provider do not grant the other any rights in and to such proprietary material except that the Driver hereby grants the Advertising Service Provider a non-exclusive license to use the advertising material provided, including its trademarks and copyrights, and the right to hyperlink to Driver’s site from its site during the term of this Agreement. Upon termination of this Agreement, the Advertising Service Provider agrees to remove the hyperlink and the advertising materials provided from its site within a reasonable time.
- REPRESENTATIONS AND WARRANTIES
- The Driver represents and warrants that the advertising provided is not false and misleading, does not contain any untrue, defamatory, harmful, abusive, vulgar or obscene materials, is in compliance with all applicable laws, does not infringe upon the rights of any other party, including but not limited to copyrights, trademarks, privacy rights, moral rights, trade secrets, patents and any other rights. The Driver also warrants and represents that it has the unrestrictive and exclusive right to use all such materials.
- The Advertising Service Provider makes no warranties that the advertising contained on the Advertising Service Provider Site will be free from errors or defects or that the use of the hypertext link or access to its site will be uninterrupted. THE ADVERTISING SERVICE PROVIDER SPECIFICALLY DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT ON THE RIGHTS OF THIRD PARTIES. IN NO EVENT SHALL THE ADVERTISING SERVICE PROVIDER BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOST SALES OR PROFIT, LOST DATA, BUSINESS INTERRUPTION OR ATTORNEYS’ FEES), EVEN IF NOTIFIED IN ADVANCE OF SUCH POSSIBILITY.
- The Driver will indemnify and hold the Advertising Service Provider harmless from and against any claims, suits, threats, demands, settlements, actions, causes of action, liabilities, obligations and all other matters, including but not limited to court costs, attorney fees, witness fees, settlement fees, and all other direct and indirect expenses and losses that may occur arising from the breach of any of the representations and warranties that the Driver has made to the Advertising Service Provider and otherwise arising directly or indirectly from the placement of its advertising materials on the Advertising Service Provider Site.
- FORCE MAJEURE
- The Advertising Service Provider will not be responsible for any failure or delay in performance hereunder that is directly or indirectly related to acts of God, storm, natural disaster, act of terrorism, utility outages or interruptions, system transmission failure, server failure, strike, lockout, or any other situation which is beyond its control.
- The Driver may terminate this Agreement, with or without cause, by giving 30 days’ advance notice of its intent to terminate. The Advertising Service Provider reserves the right to terminate this Agreement for any reason, with or without cause, upon 30 days’ written notice to Driver.
The Driver is not permitted to assign its rights or responsibilities hereunder. If any dispute or lawsuit between the parties arises relative to this Agreement, the prevailing party will be entitled to an award of reasonable attorney fees and costs.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.
ADVERTISING SERVICE PROVIDER DRIVER