This Services Agreement ("Agreement") is entered into between SMARTEK Corp. with a place of business at 4100 B Sladeview Crescent Mississauga Ontario, and the Drive (“Driver”). This Agreement includes and incorporates these Terms and Conditions and contains, among other things, warranty disclaimers, liability limitations and use limitations. There shall be no force or effect to any different terms of any related purchase order or similar form even if signed by the parties after the date hereof.
1. SOFTWARE SERVICES AND SUPPORT
1.1 Subject to the terms of this Agreement, SMARTEK will use commercially reasonable efforts to provide Driver the Services. As part of the registration process, Driver will identify an administrative username and password for Driver’s SMARTEK ONFLY account. SMARTEK reserves the right to refuse registration of, or cancel passwords it deems inappropriate.
1.2 SMARTEK will provide Driver with reasonable technical support services during the Terms of this Agreement. Drivers are encouraged to report issues via phone: 1-800-651-5513 and e-mail to info@Smarteksystems.ca
2. RESTRICTIONS AND RESPONSIBILITIES
2.1 Driver will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by SMARTEK or authorized within the Services); use the Services in any manner not expressly permitted by SMARTEK.
2.2 Further, Driver may not remove or export from the Canada or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of Canada, or any other foreign agency or authority. Any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the Canadian Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
2.3 Driver represents, covenants, and warrants that Driver will use the Services only in compliance with SMARTEK’s standard published policies then in effect and all applicable laws and regulations. Driver hereby agrees to indemnify and hold harmless SMARTEK against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Driver’s use of Services.
2.4 Although SMARTEKhas no obligation to monitor Driver’s use of the Services, SMARTEK may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
2.5 Driver shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, mobile tablet, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Driver shall also be responsible for maintaining the security of the Equipment, Driver account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Driver account or the Equipment with or without Driver’s knowledge or consent. Driver is responsible for ensuring the Equipment is maintained in proper working conditions. Driver agrees to pay SMARTEK for all loss, damage or not returning SMARTEK ONFLY owned equipment within 30 days of termination.
2.6 Driver shall only use the mobile smart screen exclusively for the SMARTEK ONFLY Application with ride-shareor delivery service.
3. CONFIDENTIALITY; PROPRIETARY RIGHTS
3.1 The Driver understands that the SMARTEK has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of SMARTEK ONFLY includes non-public information regarding features, functionality, and performance of the Service. Proprietary Information of Driver includes non-public data provided by Driver to SMARTEK ONFLY to enable the provision of the Services (“Driver Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
3.2 SMARTEK shall own all right, title and interest in and to the Driver Data, as well as any data that is based on or derived from the Driver Data and provided to Driver as part of the Services. SMARTEKshall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing.
4. PAYMENT OF FEES
4.1 Driver will be paid twenty-five percent of ad revenuegenerated from their vehicle per month for each month that Driver completes at least 140 hours.
4.2 SMARTEK may charge a fee if the Equipment not returned within 30 days after the date of termination.SMARTEK may terminate this agreement immediately and withhold all fees owed to Driver if Driver is not fulfilling required hours.
5. TERM AND TERMINATION
5.1 Subject to earlier termination as provided below, this Agreement is for the Initial Service Term of six months, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.
5.2 SMARTEK may terminate this Agreement without cause by providing 30 days notice to driver.
5.3 All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
6. WARRANTY AND DISCLAIMER
SMARTEK shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by SMARTEK or by third-party providers, or because of other causes beyond SMARTEK’s reasonable control, but SMARTEK shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, SMARTEK DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND SMARTEK ONFLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
7. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, SMARTEK AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND SMARTEK’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY DRIVER TO SMARTEK FOR THE SERVICES UNDER THIS AGREEMENT IN THE 6 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT SMARTEK ONFLY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8. MISCELLANEOUS – PART 1
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Driver except with SMARTEK’s prior written consent. SMARTEK may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Driver does not have any authority of any kind to bind SMARTEK in any respect whatsoever. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of Ontario, Canada without regard to its conflict of laws provisions. Any such action must be brought in the provincial or federal courts in Ontario, and all parties hereto expressly consent to personal jurisdiction in Ontario.
9. MISCELLANEOUS–PART 2
1. You are the owner/lessee/primary driver of the registered vehicle.
2. You will provide documented proof from the company for whom you drive, for your driving/trips and history.
3. Have a valid Full G driver’s license.
4. Have valid insurance on the registered vehicle that will have the ONFLY device installed.
5. You are 21 years of age at the time of applying.
6. Must drive a minimum amount of 35 hours per week while the ONFLY device is active.
7. Advertising revenue is subject to change at any time.
8. Advertisements are subject to change at any time.
9. The ONFLY device must be on while driving.
10. The ONFLY device is off when the engine is off.
11. Interior and exterior of the vehicle registered is safe and up to date with safety standards.
12. Obtain any additional required insurance for the ONFLY device.
13. Ensure the ONFLY device is kept clean from any debris including dirt, mud, snow, ice, dust, build up, leaves, salt and sand.
14. Must keep the device online and active on the registered vehicle for a six-month period.
15. Must notify Smartek Customer service within twelve hours of an inactive or damaged ONFLY device; failure to do so will result in your shared advertising revenue being discontinued.
16. It is your responsibility to report and/or claim to your insurance provider all acts of physical damage vandalism, incidental or accidental damage, but not limited to.
17. If the unit is offline or inactive for any reason, you allow for troubleshooting.
18. If the unit is offline or damaged, all shared advertising revenue will be discontinued during the investigation and repair period until the ONFLY device is active and online.
19. The driver contract will automatically be renewed for another six-month term if a 30-day notice of intent to discontinue is not provided.
20. In order to have the ONFLY device installed on another vehicle, you must provide a 15 business day notice to SMARTEK.
21. Driver is permitted one free ONFLY Screen vehicle change per year at no cost. Additional removals and installations will be at a cost of $300.
22. Vehicle must be washed using touchless or hand/manual wash. (You are responsible for being aware of added height of vehicle).
23. The height of the vehicle will be extended by 50cm. Must be cautious of new height once installed.
24. Agree to use your vehicle and the ONFLY Screen ethically.
25. SMARTEK holds no responsibility pertaining to permissions, policies or adherence to your employer or company you drive for.
26. Limitation of Liability. The type of advertising service and signage that is provided with the SMARTEK ONFLY System may in some markets be disallowed or banned from use in certain areas. This possibility exists due to the fact that some agencies or regulatory bodies could perceive the advertising as intrusive and it is possible that your income, ability to generate revenue or abilities to operate using the SMARTEK ONFLY System would be impacted. SMARTEK Corp and Affiliated companies take no liability, and you waive any claim against SMARTEK Corp or Affiliated companies should your market have adverse regulations which limit your ability to operate or drive in that market.
Drivers must qualify and be pre-approved to participate in The SMARTEK ONFLY Driver Revenue Share program. Failure to comply with all of the above terms and conditions will result in the ONFLY device being removed from your vehicle and a charge of $300 applied to your credit card.