SNOW CLEARING CONTRACTOR AGREEMENT
This Service Provider Agreement (“Agreement”) constitutes a legal agreement between you, an individual or company (“You” or “Service Provider”) and SnoHub Inc., a Delaware corporation (the “Company”) and shall set forth the terms and conditions under which you will provide on-demand services (“Services”) through Company’s mobile application platform (the “SnoHub Platform”). You desire to enter into this Agreement for the purpose of accessing and using the SnoHub Platform and providing the Services.
- Supplier App. Company will provide access to technology tools within the SnoHub Platform (“Supplier App”) to enable you to access additional tools for the purpose of seeking, receiving, and fulfilling on-demand requests for Services by Users, as may be updated or modified from time to time. Your usage of these technologies is subject to the Terms.
- Supplier ID. Company will issue you a Supplier ID to enable you to access and use the Supplier App in accordance with this Agreement. You agree that you will maintain your Supplier ID in confidence and not share your Supplier ID with any third party. You will immediately notify Company of any actual or suspected breach or improper use or disclosure of your Supplier ID or the Supplier App.
- Provision of Services. When the Supplier App is active, User requests for Services may appear to you via the Supplier App if you are available and in the vicinity of the User. If you accept a User’s request for Services, Company will provide you with certain User information via the Supplier App, including the User’s name and location. You acknowledge and agree that once you have accepted a User’s request for Services, Company’s mobile application may provide certain information about you to the User, including your first name, contact information, photo ID and location, and your vehicle’s make and license plate number. You shall not contact any Users or use any User’s personal data for any reason other than for the purposes of fulfilling the Services of the Company. As between Company and you, you acknowledge and agree that: (a) you shall be solely responsible for determining the most effective, efficient and safe manner to perform each instance of the Services; and (b) you shall provide all necessary staffing, equipment, tools and other materials, at your own expense, necessary to perform the Services. At all times you will carry out your service in a safe and careful way to ensure no harm is done to customers property.
3.1 Proof of Completion; Photos. You are required to take a photograph of the relevant area where you will carry out your service of the User’s property prior to performing the requested Services. This first photograph must be taken after inserting a ruler, which will be provided to you, into the snow so that the height of the snow will be clearly visible. When you have completed the work you must take another photo showing that you have cleared the snow. These photos will be sent by the Company to their customer to verify the start and completion of the job. These photos must be uploaded to the Company immediately after the completion of the job using SnoHub Platform. This MUST be done otherwise payment for the work will not be approved. Company shall retain all rights, title, and interest in and to said photographs and may use them in any commercially reasonable manner including but not limited to marketing purposes. You shall not use said photographs unless expressly authorized by Company prior to such usage.
- Your Relationship with Users. You acknowledge and agree that your provision of the Services to Users creates a direct business relationship between you and the User. Company is not responsible or liable for the actions or inactions of a User in relation to you, your activities or your vehicle. You shall have the sole responsibility for any obligations or liabilities to Users or third parties that arise from your provision of the 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 Company may release your contact and/or insurance information to a User upon such User’s reasonable request.
- Your Relationship with Company. You acknowledge and agree that Company’s provision to you of the Supplier App creates a direct business relationship between Company and you. Company 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 the Services, your acts or omissions, or your operation and maintenance of your vehicle. You retain the sole right to determine when, where, and for how long you will utilize the Supplier App. You retain the option, via the Supplier App, to attempt to accept or to decline or ignore a User’s request for the Services or to cancel an accepted request for the Services via the Supplier App, subject to Company’s then-current cancellation policies. With the exception of any signage required by local law or permit/license requirements, Company shall have no right to require you to: (a) display Company’s or any of its affiliates’ names, logos or colors on your vehicle(s) though we strongly encourage and request (unless prohibited by law) this display and provide you with a Company decal to be placed in a visible location on your vehicle; or (b) wear a uniform or any other clothing displaying Company’s or any of its affiliates’ names, logos or colors. You acknowledge and agree that you have complete discretion to provide services or otherwise engage in other business or employment activities. For the sake of clarity, you understand that you retain the complete right to; (i) use other software applications; and (ii) engage in any other occupation or business. Company retains the right to deactivate or otherwise restrict you from accessing or using the Supplier App or the Services in the event of a violation or alleged violation of this Agreement, your disparagement of Company or any of its affiliates, your act or omission that causes harm to Company’s or its affiliates’ brand, reputation or business as determined by Company in its sole discretion.
5.1 Independent Contractor Status. Service Provider is an “independent contractor” and is not an employee of Company. Service Provider is responsible for ALL applicable taxes, State, Federal, Sales Tax. If Company is found to be liable for any tax or withholding tax in connection with your use of Users’ services, then service provider will immediately reimburse and pay to Company an equivalent amount, including any interest or penalties thereon.” In other words, if Company is forced to reclassify its contract workers as employees, its customers – not Company itself – will be on the hook for any extra costs.
- Non-circumvention. Service provider will not try to circumvent or solicit Company customers for the purposes of alternative billing methods: cash, check or direct payment to the provider. In this event there will be a penalty payment of 10 times the value of the job.
- Ratings. You acknowledge and agree that: (a) after receiving the Services, a User will be prompted by Company’s mobile application to provide a rating of you and such Services and, optionally, to provide comments or feedback about you and such Services; and (b) after providing the Services, you will be prompted by the Supplier App to provide a rating of the User and, optionally, to provide comments or feedback about the User. You shall provide your ratings and feedback in good faith.
7.1 Rating. Service Provider must maintain a minimum of 80% likes” customer satisfaction rating (“Minimum Average Rating”) to remain “reputable status” and remain on the platform. If you do not increase your average rating above the Minimum Average Rating within the time period allowed (if any), Company reserves the right to deactivate your access to the Supplier App and Services. Additionally, you acknowledge that your repeated failure to accept User requests for the Services while you are logged in to the Supplier App creates a negative experience for Users of Company’s mobile application. If you do not wish to accept User requests for the Services for a period of time, you agree that you will log off of or be removed from the Supplier App. Company and its affiliates reserve the right to use, share and display your and User ratings and comments in any manner in connection with the business of Company without attribution to you or your approval. You acknowledge and agree that Company is a distributor (without any obligation to verify) and not a publisher of your and User ratings and comments, provided that Company reserves the right to edit or remove comments in the event that such comments include obscenities or other objectionable content, include an individual’s name or other personal information, or violate any privacy laws, other applicable laws or Company’s or its affiliates’ content policies.
- Devices. You are responsible for obtaining a device to access the free SnoHub Platform and Supplier App. You are responsible for the acquisition, cost and maintenance of your device as well as any necessary wireless data plan; Company shall make available the Supplier App for installation on your device. Company hereby grants you a personal, non-exclusive, non-transferable license to install and use the Supplier App on your device solely for the purpose of providing the Services. You agree to not provide, distribute or share, or enable the provision, distribution or sharing of, the Supplier 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 Supplier App from your device in the event that you cease to provide the Services using your device. You agree that: (i) use of the Supplier 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 Supplier App on your device as an interface with the Services may consume very large amounts of data through the data plan. COMPANY ADVISES THAT YOUR DEVICE ONLY BE USED UNDER A DATA PLAN WITH UNLIMITED OR VERY HIGH DATA USAGE LIMITS, AND COMPANY SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY FEES, COSTS, OR OVERAGE CHARGES ASSOCIATED WITH ANY DATA PLAN.
- Location Based Services. You acknowledge and agree that your geo-location information must be provided to Company via your device in order to provide the Services. You acknowledge and agree that: (a) your geo-location information may be obtained by Company while the Supplier App is running; and (b) the approximate location of your vehicle will be displayed to the User before and during the provision of the Services to such User. In addition, Company may monitor, track and share with third parties your geo-location information obtained by the Supplier App and d for safety and security purposes.
- You and Your Vehicle; Training.
10.1 Your Requirements; background checks. You acknowledge and agree that at all times, you shall: (a) hold and maintain (i) a valid driver’s license with the appropriate level of certification to operate your vehicle, and (ii) all licenses, permits, approvals and authority applicable to you that are necessary to provide the Services to third parties in the territory; (b) possess the appropriate and current level of training, expertise and experience to provide the Services in a professional manner with due skill, care and diligence; and (c) maintain high standards of professionalism, service and courtesy. You acknowledge and agree that you may be subject to certain background and record checks from time to time in order to qualify to provide, and remain eligible to provide, the Services, and you agree to adhere to standard background check to participate in SnoHub Platform and will supply all answers to Company’s reasonable requests. You acknowledge and agree that Company reserves the right, at any time in Company’s sole discretion, to deactivate or otherwise restrict you from accessing or using the Supplier App or Company Services if you fail to meet the requirements set forth in this Agreement.
10.2 Documentation. To ensure your compliance with all requirements in this Section 10, you must provide Company with written copies of all such licenses, permits, approvals, authority, registrations and certifications prior to your provision of any the Services. Thereafter, you must submit to Company written evidence of all such licenses, permits, approvals, authority, registrations and certifications as they are renewed. Company 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. Company reserves the right to independently verify your documentation from time to time in any way Company deems appropriate in its reasonable discretion.
10.3. Insurance. You agree to maintain during the term of this Agreement on all vehicles operated by you under this Agreement automobile liability insurance that provides protection against bodily injury and injury to property. You agree to maintain during the term of this Agreement workers’ compensation insurance as required by all applicable laws and you agree to name Company as an additional insured. This coverage must also include any no-fault coverage required by law that may not be waived by an insured. You agree to provide Company and its affiliates a copy of the insurance policies, policy declarations, proof of insurance identification card and proof of premium payment for the insurance policies required in this Section 10 upon request. Furthermore, you must provide Company with written notice of cancellation of any insurance policy required by Company. Company shall have no right to control your selection or maintenance of your policy. If permitted by applicable law, you may choose to insure yourself against industrial injuries by maintaining occupational accident insurance in place of workers’ compensation insurance. Furthermore, if permitted by applicable law, you may choose not to insure yourself against industrial injuries at all, but do so at your own risk.
You understand and acknowledge that your personal automobile or workers’ compensation insurance policy may not afford liability, comprehensive, collision, medical payments, personal injury protection, or other coverage for the Services you provide pursuant to this Agreement. Company recommends that you have insurance to cover this. If you have any questions or concerns about the scope or applicability of your own insurance coverage, it is your responsibility, not that of Company, to resolve them with your insurer(s).
- Financial Terms.
11.1 Service Fee Calculation. You are entitled to charge a fee for each instance of completed Services provided to a User that are obtained via the Company App. You appoint Company as your limited payment collector agent solely for the purpose of accepting the Fee, and depending on the region and/or if requested by you, applicable taxes and fees from the User on your behalf via the payment processing functionality facilitated by the SnoHub Platform; and (ii) agree that payment made by User to Company (or to an affiliate of Company acting as an agent of Company) shall be considered the same as payment made directly by User to you. In addition, the parties acknowledge and agree that as between you and Company, the Fee is a recommended amount, and the primary purpose of the pre-arranged Fee is to act as the default amount in the event you do not negotiate a different amount. You shall always have the right to: (i) charge a fee that is different than the pre-arranged Fee; or (ii) negotiate, at your request, a Fee that is lower than the prearranged Fee (each of (i) and (ii) herein, a “Negotiated Fee”). Company shall consider all such requests from you in good faith.
11.2 Your Payment. Service Provider for Company orders shall be paid exclusively through SnoHub mobile financial gateway via the Supplier App. Company will pay Service Provider directly within seven (7) business days, after each job is completed and the before and after photos have been uploaded to the customer’s account in accordance with Section 3 above, as follows: (a) the Fee less any applicable Service Fee (as defined below); and (b) depending on the region, certain taxes and ancillary fees. All payments to Provider will be made directly into the Service Provider’s bank account. To enable this to be done Service Provider shall provide banking information (checking, financial institution, routing #) for the purposes of providing payment for Services rendered.
11.3 Service Fee. In consideration of Company’s provision of the Supplier App and the Services for your use and benefit hereunder, you agree to pay Company a service fee of 30% per Service transaction calculated as a percentage of the amount of the job plus a 3% transaction fee to cover the electronic money transfer process, total deduction being 23% (“Service Fee”). In the event regulations applicable to your territory require taxes to be calculated on the Fee, Company shall calculate the Service Fee based on the Fee net of such taxes. Company reserves the right to change the Service Fee at any time in Company’s discretion based upon local market factors, and Company will provide you with notice in the event of such change. Continued use of the Services after any such change in the Service Fee calculation shall constitute your consent to such change.
11.4 Cancellation Charges. You acknowledge and agree that Users may elect to cancel requests for the Services that have been accepted by you via the Supplier App at any time prior to your arrival. In the event that a User cancels an accepted request for the Services, Company may charge the User a cancellation fee on your behalf. If charged, this cancellation fee shall be deemed the Fee for the cancelled Services for the purpose of remittance to you hereunder (“Cancellation Fee”). If a Requester cancels more than 4 hours before a scheduled Professional Service appointment, there is no cancellation fee. If a Requester cancels between 3-4 hours before a scheduled Professional Service appointment, the Requester will be charged a $20 Cancellation Fee. If the Requester cancels during the 3 hours before a scheduled Professional Service appointment, the Requester will be charged half of the Professional Service Fee, and you will receive that amount, less the Service Fee described in 11.3.
The parties acknowledge and agree that as between you and Company, this Cancellation Fee is a recommended amount, and the primary purpose of such Cancellation Fee is to act as the default amount in the event you do not negotiate a different amount. You shall always have the right to: (i) charge a cancellation fee that is less than the Cancellation Fee; or (ii) negotiate, at your request, a cancellation fee that is lower than the Cancellation Fee (each of (i) and (ii) herein, a “Negotiated Cancellation Fee”). If charged, the Cancellation Fee (regardless of any Negotiated Cancellation Fee) shall be deemed the Fare for the cancelled Services for the purpose of remittance to you hereunder and the calculation of your payment.
11.5 Taxes. You acknowledge and agree that you are required to: (a) complete all tax registration obligations and calculate and remit all tax liabilities related to your provision of the Services as required by applicable law; and (b) provide Company with all relevant tax information. You further acknowledge and agree that you are responsible for taxes on your own income arising from the performance of the Services. Notwithstanding anything to the contrary in this Agreement, Company may in its reasonable discretion based on applicable tax and regulatory considerations, collect and remit taxes resulting from your provision of The Services and/or provide any of the relevant tax information you have provided pursuant to the foregoing requirements in this Section 11.5 directly to the applicable governmental tax authorities on your behalf or otherwise.
- Proprietary Rights.
12.1 License Grant. Subject to the terms and conditions of this Agreement, Company hereby grants you a non-exclusive, non-transferable, non-sublicensable, non-assignable license, during the term of this Agreement, to use the Services (including the Supplier App and SnoHub Platform on your device) solely for the purpose of providing the Services to Users and tracking resulting Fees. All rights not expressly granted to you are reserved by Company, its affiliates and their respective licensors.
12.2 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 the Services, Supplier App, or the SnoHub Platform in any way; (b) modify or make derivative works based upon the Services, Supplier App, or SnoHub Platform; (c) improperly use the Services, Supplier App or SnoHub Platform, including creating Internet “links” to any part of the Services, Supplier App, or SnoHub Platform, “framing” or “mirroring” any part of the Services, Supplier App, or SnoHub Platform on any other websites or systems, or “scraping” or otherwise improperly obtaining data from the Services, Supplier App, or SnoHub Platform; (d) reverse engineer, decompile, modify, or disassemble Services, Supplier App, or SnoHub Platform, 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 Services, Supplier App, or SnoHub Platform 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 Services, Supplier App, or SnoHub Platform 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 Company Services; or (iv) attempt to gain unauthorized access to Services, Supplier App, or SnoHub Platform or its related systems or networks.
12.3 Ownership. Services, Supplier App, and SnoHub Platform, including all data collected therein (“Company Data”) and intellectual property rights therein, are and shall remain (as between you and Company) the property of Company, its affiliates or their respective licensors. Neither this Agreement nor your use of the Services, Supplier App, SnoHub Platform or Company Data conveys or grants to you any rights in or related to the Services, Supplier App, SnoHub Platform or Company Data, except for the limited license granted above. Other than as specifically permitted by Company in connection with the Services, you are not permitted to use or reference in any manner Company’s, its Affiliates’, or their respective licensors’ company names, logos, products and service names, trademarks, service marks, trade dress, copyrights or other indicia of ownership, alone and in combination with other letters, punctuation, words, symbols and/or designs (the “Company Marks and Names“) for any commercial purposes. You agree that you will not try to register or otherwise use and/or claim ownership in any of Company Marks and Names, alone or in combination with other letters, punctuation, words, symbols and/or designs, or in any confusingly similar mark, name or title, for any goods and services.
- Confidentiality. 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 Company Data, Supplier IDs, User information, and the transaction volume, marketing and business plans, business, financial, technical, operational and such other non-public information of each party (whether disclosed in writing or verbally) that such party designates as being proprietary or confidential or of which the other party should reasonably know that it should be treated as confidential. Each party acknowledges and agrees that: (a) all Confidential Information shall remain the exclusive property of the disclosing party; (b) it shall not use Confidential Information of the other party for any purpose except in furtherance of this Agreement; (c) it shall not disclose Confidential Information of the other party to any third party, except to its employees, officers, contractors, agents and service providers (“Permitted Persons“) as necessary to perform under this Agreement, provided Permitted Persons are bound in writing to obligations of confidentiality and non-use of Confidential Information no less protective than the terms hereof; and (d) it shall return or destroy all Confidential Information of the disclosing party, upon the termination of this Agreement or at the request of the other party (subject to applicable law and, with respect to Company, its internal record-keeping requirements).
- Representations and Warranties; Disclaimers.
15.1 By You. You hereby as an individual or company represent and warrant that: (a) you have full power and authority to enter into this Agreement and perform your obligations hereunder; (b) you have not entered into, and during the term will not enter into, any agreement that would prevent you from complying with this Agreement; and (c) you will comply with all applicable laws in your performance of this Agreement, including holding and complying with all permits, licenses, registrations and other governmental authorizations necessary to provide the Services pursuant to this Agreement.
15.2 Disclaimer of Warranties. COMPANY AND ITS AFFILIATES PROVIDE, AND YOU ACCEPT, THE SERVICES, SUPPLIER APP AND THE SNOHUB PLATFORM ON AN “AS IS” AND “AS AVAILABLE” BASIS. COMPANY AND ITS AFFILIATES DO NOT REPRESENT, WARRANT OR GUARANTEE THAT YOUR ACCESS TO OR USE OF THE SERVICES, SUPPLIER APP AND THE SNOHUB PLATFORM: (A) WILL BE UNINTERRUPTED OR ERROR FREE; OR (B) WILL RESULT IN ANY REQUESTS FOR THE SERVICES. COMPANY AND ITS AFFILIATES FUNCTION AS AN ON-DEMAND LEAD GENERATION AND RELATED SERVICE ONLY AND MAKE NO REPRESENTATIONS, WARRANTIES OR GUARANTEES AS TO THE ACTIONS OR INACTIONS OF THE USERS WHO MAY REQUEST OR RECEIVE SERVICES FROM YOU, AND COMPANY AND ITS AFFILIATES DO NOT SCREEN OR OTHERWISE EVALUATE USERS. BY USING THE SERVICES, SUPPLIER APP AND THE SNOHUB PLATFORM, 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, SUPPLIER APP AND THE SNOHUB PLATFORM. NOTWITHSTANDING COMPANY’S APPOINTMENT AS THE LIMITED PAYMENT COLLECTION AGENT OF YOU FOR THE PURPOSE OF ACCEPTING PAYMENT FROM USERS ON YOUR BEHALF AS SET FORTH ABOVE, COMPANY AND ITS AFFILIATES EXPRESSLY DISCLAIM ALL LIABILITY FOR ANY ACT OR OMISSION OF YOU, ANY USER OR OTHER THIRD PARTY.
WITHOUT LIMITING THE FOREGOING, NEITHER SNOHUB NOR ITS AFFILIATES OR LICENSORS ARE RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE SERVICES, SUPPLIER APP AND THE SNOHUB PLATFORM (INCLUDING BUT NOT LIMITED TO THE CONDUCT OF ANY REQUESTERS OR PROFESSIONALS). NEITHER SNOHUB NOR ITS AFFILIATES OR LICENSORS WARRANT THAT THE SNOHUB PLATFORM IS FREE FROM VIRUSES, WORMS, TROJAN HORSES, OR OTHER HARMFUL COMPONENTS. SNOHUB AND ITS AFFILIATES AND LICENSORS CANNOT AND DO NOT GUARANTEE THAT ANY INFORMATION, PERSONAL OR OTHERWISE, SUPPLIED BY YOU WILL NOT BE MISAPPROPRIATED, INTERCEPTED, DELETED, DESTROYED OR USED BY OTHERS.
SNOHUB AND MEMBERS EXPRESSLY DISCLAIM ANY LIABILITY THAT MAY ARISE BETWEEN USERS OF THE SERVICES, SUPPLIER APP AND THE SNOHUB PLATFORM. THE SNOHUB PLATFORM IS ONLY A VENUE FOR CONNECTING USERS. TO THE EXTENT THAT THE SNOHUB PLATFORM CONNECTS A USER TO YOU FOR THE PURPOSES OF PROVIDING MERCHANDISE OR SERVICES HEREUNDER, SNOHUB WILL NOT BE RESPONSIBLE FOR ASSESSING THE SUITABILITY, LEGALITY OR ABILITY OF ANY USER AND YOU EXPRESSLY WAIVE AND RELEASE SNOHUB FROM ANY AND ALL LIABILITY, CLAIMS OR DAMAGES ARISING FROM OR IN ANY WAY RELATED TO USER. BECAUSE SNOHUB IS NOT INVOLVED IN THE ACTUAL CONTACT BETWEEN USERS OR IN THE COMPLETION OF ANY PROFESSIONAL SERVICE, IN THE EVENT THAT YOU HAVE A DISPUTE WITH ONE OR MORE USERS, YOU RELEASE SNOHUB AND MEMBERS FROM ANY AND ALL CLAIMS, DEMANDS, OR DAMAGES (ACTUAL, DIRECT OR CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTE.
BY USING THE SNOHUB PLATFORM, YOU AGREE THAT THE EXCLUSIONS AND LIMITATIONS OF LIABILITY SET OUT IN THIS AGREEMENT ARE REASONABLE. IF YOU DO NOT BELIEVE THEY ARE REASONABLE, YOU MUST NOT USE THE SNOHUB PLATFORM.
YOU ACCEPT THAT, AS A CORPORATION, SNOHUB HAS AN INTEREST IN LIMITING THE PERSONAL LIABILITY OF ITS OFFICERS, DIRECTORS AND EMPLOYEES. YOU AGREE THAT YOU WILL NOT BRING ANY CLAIM PERSONALLY AGAINST SNOHUB’S OFFICERS, DIRECTORS OR EMPLOYEES IN CONNECTION WITH ANY DISPUTE, LOSS OR DAMAGE. WITHOUT PREJUDICE TO THE FOREGOING, YOU AGREE THAT THE LIMITATIONS OF WARRANTIES AND LIABILITY SET OUT IN THIS AGREEMENT WILL PROTECT THE COMPANY’S OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS, PARENTS, SUBSIDIARIES, AFFILIATES, SUCCESSORS, ASSIGNS AND SUB-CONTRACTORS AS WELL AS SNOHUB.
EACH PARTY ACKNOWLEDGES THAT THE OTHER PARTY HAS ENTERED INTO THIS AGREEMENT RELYING ON THE LIMITATIONS OF LIABILITY STATED HEREIN AND THAT THOSE LIMITATIONS ARE AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.
- LIMITATION OF LIABILITY.
YOU AGREE NOT TO HOLD SNOHUB, ITS AFFILIATES, ITS LICENSORS, OR ANY OF SUCH PARTIES’ AGENTS, EMPLOYEES, CONTRACTORS, OFFICERS, DIRECTORS, CORPORATE PARTNERS, OR PARTICIPANTS (COLLECTIVELY, “MEMBERS”) LIABLE FOR ANY DAMAGES, EXPENSES, LOSSES, SUITS, CLAIMS, AND/OR CONTROVERSIES (COLLECTIVELY, “LIABILITIES”) THAT HAVE ARISEN OR MAY ARISE, WHETHER KNOWN OR UNKNOWN, RELATING TO YOUR USE OF OR INABILITY TO USE THE SNOHUB PLATFORM, INCLUDING WITHOUT LIMITATION ANY LIABILITIES ARISING IN CONNECTION WITH THE SERVICES, CONDUCT, ACT OR OMISSION OF ANY USER (INCLUDING WITHOUT LIMITATION STALKING, HARASSMENT, ACTS OF PHYSICAL VIOLENCE, AND LOSS OR DESTRUCTION OF PERSONAL PROPERTY), SERVICES, ANY DISPUTE WITH ANY USER, ANY INSTRUCTION, ADVICE, ACT, OR SERVICE PROVIDED BY SNOHUB OR MEMBERS, AND ANY DESTRUCTION OF YOUR INFORMATION. UNDER NO CIRCUMSTANCES WILL SNOHUB OR MEMBERS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING IN CONNECTION WITH YOUR USE OF OR INABILITY TO USE THE SNOHUB PLATFORM OR ANY SERVICES OR MERCHANDISE, EVEN IF SUCH PARTIES WERE OR SHOULD HAVE BEEN ADVISED OF THE POSSIBILITY OF THE SAME. SNOHUB AND MEMBERS DO NOT ACCEPT ANY LIABILITY WITH RESPECT TO THE QUALITY OR FITNESS OF ANY WORK PERFORMED IN CONNECTION WITH THE SNOHUB PLATFORM, THE PROFESSIONAL SERVICES, THE MERCHANDISE OR THIS AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN TYPES OF DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IF, NOTWITHSTANDING THE FOREGOING EXCLUSIONS, IT IS DETERMINED THAT SNOHUB OR MEMBERS ARE LIABLE FOR DAMAGES, IN NO EVENT WILL THE AGGREGATE LIABILITY, WHETHER ARISING IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EXCEED THE TOTAL FEES PAID BY YOU TO SNOHUB DURING THE SIX (6) MONTHS PRIOR TO THE TIME SUCH CLAIM AROSE.
- Indemnity. You shall indemnify, defend (at Company’s option) and hold harmless Company and its affiliates and their respective officers, directors, employees, agents, successors and assigns from and against any and all liabilities, expenses (including legal fees), damages, penalties, fines, social security contributions and taxes arising out of or related to: (a) your breach of your representations, warranties or obligations under this Agreement; or (b) a claim by a third party (including Users, regulators and governmental authorities) directly or indirectly related to your provision of the Services or use of the Supplier App or SnoHub Platform. This indemnification provision shall not apply to your breach of any representations regarding your status as an independent contractor.
- Dispute Resolution. Any dispute between the parties arising out of or relating to this Agreement shall be resolved by binding arbitration before the American Arbitration Association in Westchester County, New York in accordance with the Commercial Rules of the American Arbitration Association prevailing at the time of arbitration, which may be found at www.adr.org. The prevailing party shall be entitled to an award of its reasonable attorneys’ fees and costs incurred in the matter. The award of the arbitrator may be reduced to a Judgment without notice to the opposing party in any state or federal court having jurisdiction thereof. Arbitration Rules and Procedure can be found in our Standard Terms and Conditions incorporated herein by reference.
- Other Provisions.
19.1 General. You may not assign the terms of this Agreement without Company’s prior written approval. Company may assign them without your consent to: (i) a subsidiary or affiliate; (ii) an acquirer of Company’s equity, business or assets; or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. No joint venture, partnership, employment, or agency relationship exists between you, Company or any Third Party Provider as a result of this Agreement or use of the Services. If any provision of these Terms is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced to the fullest extent under law. Company’s failure to enforce any right or provision in these Terms shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Company in writing.
19.2 Choice of Law. These Terms are governed by and construed in accordance with the laws of the State of New York, without giving effect to any conflict of law principles, except as may be otherwise provided in supplemental terms applicable to your region.
19.3 Termination. This Agreement shall continue in full force and effect until such time as it is terminated by you or by us as set forth herein. Either party may terminate this Agreement: (a) without cause at any time upon seven (7) days prior written notice to the other party; (b) immediately, without notice, for the other party’s material breach of this Agreement; or (c) immediately, without notice, in the event of the insolvency or bankruptcy of the other party, or upon the other party’s filing or submission of request for suspension of payment (or similar action or event) against the terminating party. In addition, Company may terminate this Agreement or deactivate your Driver ID immediately, without notice, with respect to you in the event you no longer qualify, under applicable law or the standards and policies of Company and its Affiliates, to provide the Services or to operate the vehicle, or as otherwise set forth in this Agreement.
19.4 Effect of Termination. Upon termination of the Agreement, you shall immediately delete and fully remove the Supplier App and Company Data from any of your devices.
19.5 Relationship. Except as otherwise expressly provided herein with respect to Company acting as the limited payment collection agent solely for the purpose of collecting payment from Users on your behalf, the relationship between the parties under this Agreement is solely that of independent contracting parties. The parties expressly agree that: (a) this Agreement is not an employment agreement, nor does it create an employment relationship, between Company and you; and (b) no joint venture, partnership, or agency relationship exists between Company and you. You have no authority to bind Company or its Affiliates and you undertake not to hold yourself out as an employee, agent or authorized representative of Company or its affiliates. Where, by implication of mandatory law or otherwise, you may be deemed an agent or representative of Company, you undertake and agree to indemnify, defend (at Company’s option) and hold Company and its affiliates harmless from and against any claims by any person or entity based on such implied agency or representative relationship.
19.6 Entire Agreement. This Agreement constitutes the entire Agreement between the parties hereto and supersedes all prior agreements, whether written or oral, with respect to the subject matter herein contained. No provision of this Agreement shall be deemed waived, amended or modified by either party unless such wavier, amendment or modification shall be in writing and signed by a duly authorized officer of the party against whom the waiver, amendment or modification is to be enforced
19.7 Survival. All provisions that should by their nature survive the expiration or termination of this Agreement.
19.8 Modification. In the event Company modifies the terms and conditions of this Agreement at any time, such modifications shall be binding on you only upon your acceptance of the modified Agreement. Company 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 Company Services, or downloading, installing or using the Supplier App, you are bound by any future amendments and additions to information referenced at hyperlinks herein, or documents incorporated herein, including with respect to Fare Calculations. Continued use of Company Services or Supplier 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.
19.9 Electronic Signature. By signing electronically, the parties agree to the Terms and Conditions that are hereby incorporated by reference and made a part of this Agreement and confirm that this Agreement contains the parties’ entire understanding of the subject matter hereof.