PLEASE READ VERY CAREFULLY THESE TERMS AND CONDITIONS (“AGREEMENT”) BEFORE REGISTERING TO USE EVERTRANSIT’S DISPATCH SOLUTIONS (DEFINED BELOW). BY UNDERTAKING ANY OF THE FOLLOWING ACTIONS: (A) CLICKING THAT YOU ACCEPT OR AGREE TO THESE TERMS WHEN PRESENTED WITH THE OPTION TO DO SO; (B) REGISTERING FOR THE DISPATCH SOLUTIONS; OR (C) USING THE DISPATCH SOLUTIONS, YOU AGREE THAT (I) YOU HAVE THE REQUISITE AUTHORITY, POWER AND RIGHT TO FULLY BIND THE TRANSPORTATION PROVIDER (DEFINED BELOW) WISHING TO USE EVERTRANSIT’S DISPATCH SOLUTIONS AND (II) TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND ALL TERMS, POLICIES AND GUIDELINES INCORPORATED BY REFERENCE. IF YOU DO NOT ACCEPT THESE TERMS AND CONDITIONS, PLEASE DO NOT REGISTER FOR OR USE EVERTRANSIT’S DISPATCH SOLUTIONS.
1. Services. Subject to these terms and conditions this Agreement EverTransit will provide a cloud-based mobile dispatching platform that simplifies ride management (“Dispatch Solutions”) for third party transportation providers (individually a “Transportation Provider”). EverTransit may in its sole discretion, from time-to-time during the term of this Agreement (as set forth in Section 2), modify, change, enhance, correct or upgrade the Dispatch Solutions (including addition of features and functionality thereto and removal of features and functionality therefrom).
2. Term & Termination. This Agreement shall remain in effect for as long as Transportation Provider uses the Dispatch Solutions. Transportation Provider may terminate this Agreement at any time for its convenience by giving EverTransit thirty (30) days’ prior written notice. EverTransit reserves the right to terminate this Agreement and its provision of the Dispatch Solutions to Transportation Provider by giving notice at any time, for any reason or for no reason at all.
3. Fees & Payment. Transportation Provider will pay EverTransit for the Dispatch Solutions within thirty (30) days of the date of the invoice as issued by EverTransit. In the event of a disputed payment, all current and future invoices will remain due and payable. All sales are final and are not subject to refunds. Unless otherwise stated, all payments shall be made in U.S. dollars and all amounts referenced herein refer to U.S. dollars.
5. Intellectual Property. (a) All rights, title and interest in and to the Dispatch Solutions, including but not limited to any and all software (including any updates or modifications) created or used by EverTransit and all Data, documentation, all trademarks, trademark applications, copyrights, technology, patents, patent applications, and/or tools used by EverTransit to promote, market, offer for sale, sell the Dispatch Solutions and all of the intellectual property rights with respect to each of the foregoing (collectively, “EverTransit Intellectual Property”) shall be owned exclusively by and remain with EverTransit. (b) Except as expressly set forth in this Agreement, Transportation Provider has no rights with respect to the EverTransit Intellectual Property. (c) Transportation Provider may not, directly or indirectly: (i) remove or modify any disclaimers, proprietary notices or copyright notices displayed on the EverTransit Intellectual Property; (ii) create or engage with a third party to create any web-based or mobile application based platform that infringes or misappropriates any EverTransit Intellectual Property; (iii) sell, lease, sublicense or otherwise use, transfer or provide access to the Dispatch Solutions (or any part thereof or any rights therein), directly or indirectly, to any third party or for the benefit of any Transportation Provider partner, subsidiary or affiliate; (iv) reverse engineer, disassemble, decompile, modify, enhance, correct, upgrade, change in any way, or create any derivative work based on EverTransit Intellectual Property; or (v) use, publish or display the EverTransit Intellectual Property in any way that may impair the validity of EverTransit’s right in such property or take any other action that is inconsistent with the limitations set forth in this Section 6.
6. Confidential Information. It is understood that EverTransit may disclose certain confidential and proprietary information including without limitation, data, software, communications and materials (collectively, “Confidential Information”), in whatever form presented, either before or after the execution of this Agreement to Transportation Provider. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to EverTransit; (ii) was known to the Transportation Provider prior to its disclosure by the EverTransit without breach of any obligation owed to the EverTransit; (iii) was independently developed by the Transportation Provider without breach of any obligation owed to the EverTransit; or (iv) is received from a third party without breach of any obligation owed to the EverTransit. Transportation Provider agrees to protect the confidentiality of the Confidential Information in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind (but in no event using less than reasonable care). In the event that Transportation Provider is compelled by law to disclose Confidential Information of EverTransit, it shall provide the EverTransit with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at EverTransit’s cost, if the EverTransit wishes to contest the disclosure. Upon termination or expiration of this Agreement, which ever is early, Transportation Provider shall return all Confidential Information to EverTransit. Transportation Provider acknowledges and agrees that, because it may be difficult to assess the damages incurred by EverTransit from a breach of Section 6 or this Section 7, EverTransit shall have the right, in addition to any other legal and equitable remedies available to it, to injunctive relief to prevent any potential breach or further breach of Section 6 or this Section 7.
7. Non-Compete and Exclusivity Agreement. During the term of this Agreement and for a period of twelve months following the termination of this Agreement, Transportation Provider will not (a) engage or engage a third party to develop any software or mobile application that provides dispatch solutions or (b) engage in a partnership with any other company that provides dispatch solutions. EverTransit is not restricted in any way during the term of this Agreement or for any period after the termination of this Agreement to pursue other business relationships or agreements with other Transportation Providers.
8. Compliance with Laws. Transportation Provider represents, warrants and covenants that it possesses and shall maintain at its own expense all permits, licenses, approvals, registrations, consents and certificates and pay all fees and other amounts required by law with respect to its business and /or performance of this Agreement. Transportation Provider shall, in connection with performance of this Agreement, comply at its own expense with all applicable federal, state, and local laws, ordinances, rules, regulations, court orders and governmental or regulatory agency orders (collectively, “Laws”), including without limitation, Laws relating to the operation of a livery business or other taxes due in connection with provision and sale of its livery services. Transportation Provider shall promptly take all necessary actions required to reedy a violation of any such Law, ordinance, rule, regulation or order.
9. Taxes & Insurance. Each party shall pay any and all taxes and fees imposed by Law on it in connection with such party’s performance of this Agreement. Any applicable local, sales or use taxes due in connection with the provision of livery services associated with the Dispatch Solutions shall be the responsibility of Transportation Provider. Transportation Provider shall maintain at all times during the term of this Agreement insurance coverage with minimum amounts and scope as is customary and reasonably taking in to account the nature of Transportation Provider’s business. Transportation Provider shall provide EverTransit with evidence of such insurance coverage upon request.
10. Disclaimer. THE DISPATCH SOLUTIONS PROVIDED HEREUNDER ARE
PROVIDED STRICTLY ON AN “AS IS” BASIS, AND NO WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, REPRESENTATIONS OR PROMISES HAVE BEEN MADE OR ARE GIVEN BY EVERTRANSIT TO TRANSPORTATION PROVIDER OR ANY OTHER PERSON REGARDING THE ORIGINALITY, MERCHANTABILITY, TITLE, NON-INFRINGEMENT, SUITABILITY, ACCURACY OR FITNESS FOR A PARTICULAR PURPOSE OF THE DISPATCH SOLUTION OR ANY PART THEREOAND NO WARRANTY IS GIVEN THAT THE DISPATCH SOLUTIONS WILL CONFORM TO ANY DESCRIPTION THEREOF OR BE FREE OF DEFECTS OR ERRORS. ALL INTEGRATION AND USE OF, AND PROBLEMS CAUSED BY OR RESULTING FROM USE OF, ANY THIRD PARTY SOFTWARE OR SERVICES IN CONJUNCTION WITH THE DISPATCH SOLUTIONS IS THE SOLE AND EXCLUSIVE RESPONSIBILITY OF TRANSPORTATION PROVIDER AND EVERTRANSIT SHALL HAVE NO RESPONSIBILITY OR LIABILITY WITH RESPECT THERETO.
EVERTRANSIT DOES NOT GUARANTEE THAT THE DISPATCH SOLUTIONS WILL BE OPERABLE AT ALL TIMES OR DURING ANY DOWN TIME (i) CAUSED BY OUTAGES TO ANY PUBLIC INTERNET BACKBONES, NETWORKS OR SERVERS, (ii) CAUSED BY ANY FAILURES OF TRANSPORTATION PROVIDER’S EQUIPMENT, SYSTEMS OR SERVERS, (iii) FOR SCHEDULED MAINTENANCE, OR (iv) FOR ANY EVENTS OF FORCE MAJEURE, AS DESCRIBED IN SECTION 15(i).
11. Limitation of Liability. IN NO EVENT SHALL EVERTRANSIT OR ITS AFFILIATES, SUCCESSORS, AND ASSIGNS, AND ITS EMPLOYEES, REPRESENTATIVES, AGENTS, AND OFFICERS BE LIABLE TO TRANSPORTATION PROVIDER FOR: (i) INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS AND LOST OPPORTUNITIES), EVEN IF MADE AWARE OF THE POSSIBILITY OF SUCH DAMAGES; OR (ii) DAMAGES IN EXCESS OF THE AMOUNT EQUAL TO THE TOTAL SUM PAID BY TRANSPORTATION PROVIDER TO EVERTRANSIT DURING THE SIX (6) MONTH PERIOD PRIOR TO THE DATE ON WHICH THE LIABILITY AROSE. NO ACTION, SUIT OR PROCEEDING SHALL BE BROUGHT BY TRANSPORTATION PROVIDER AGAINST EVERTRANSIT MORE THAN ONE (1) YEAR AFTER THE DATE THE CLAIM AROSE.
12. Indemnification. Transportation Provider shall indemnify, defend and hold EverTransit and any of its affiliates and each of their respective officers, directors, shareholders, employees, agents, successors and assigns (collectively, “Indemnified Parties”) harmless from and against any and all claims, actions, fines, penalties, liabilities, damages, or expenses (including attorney’s fees and any other reasonable costs or litigation) (collectively, “Claims”) that any of the Indemnified Parties may suffer, sustain, or incur, arising out of or related to (i) Transportation Provider’s provision of livery services, including without limitation any property loss, damage, personal injury or death, sustained by a Client; (ii) any negligent acts, errors, omissions or intentional misconduct of the Transportation Provider, its employees, subcontractors, or agents and (iii) Transportation Provider’s failure to comply with any Law.
13. Notices. All notices, consents or approvals hereunder will be in writing and will be deemed to have been given and received when (a) delivered personally (against receipt) or by courier; (b) received by certified or registered mail, return receipt requested, postage prepaid; or (c) sent by email or confirmed facsimile transmission; in EverTransit’s case, at [INSERT CONTACT INFORMATION] and in Transportation Provider’s case, at the email address provided by Transportation Provider upon registration for the Dispatch Solutions or at any address provided by Transportation Provider upon registration.
14. Miscellaneous. (a) Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect; (b) Assignment. Transportation Provider may not assign any or all of its rights or delegate any or all of its duties or obligations under this Agreement without the express written consent of EverTransit. EverTransit may assign this Agreement (by operation of law or otherwise) in its entirety without Transportation Provider’s consent to any subsidiary, affiliate or related entity, or to a successor in interest in connection with a merger, acquisition, corporate reorganization or sale of all or substantially all of its assets. Any assignment or delegation in violation of this Section 15(b) will be void and of no force or effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns; (c) Non-Waiver. Either party’s failure at any time to require strict performance from the other party of any of the provisions hereof shall not waive or diminish either party’s right thereafter to demand strict compliance therewith or with any other provision; (d) Governing Law. This Agreement shall be governed exclusively by the internal laws of the State of New York, without regard to its conflicts of laws rules; (e) Dispute Resolution. Any disputes arising between the parties as a result of this Agreement shall be settled by arbitration in accordance with the rules of the American Arbitration Association and judgment upon the award rendered may be entered in any court having jurisdiction thereof; (f) Entire Agreement. This Agreement constitutes the entire agreement between the parties, and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Any amendments, modifications or waivers of this Agreement may only be made by EverTransit as executed in a writing, posted in a notice on its website (www.EverTransit.com) or by sending you a notice via email or postal mail. Use of the Dispatch Solutions by you following such notification will constitute your acceptance of the modified terms and conditions; (g) Surviving Provisions. The provisions of Sections 6, 7, 8, 9, 10, 11, 12, and 13 shall survive termination of this Agreement; (h) Independent Contractor. Nothing contained in this Agreement or in the relationship of EverTransit and Transportation Provider shall be deemed to constitute a partnership, joint venture or any other relationship between the parties except for the contractual agreement described herein. Neither party shall have any authority to execute any contracts or agreements for or on behalf of the other party or to bind the other party in any manner except as provided herein; (i) Force Majeure. Neither party to this Agreement shall be in default of or to have breached any provision of this Agreement as a result of any delay, failure in performance or interruption of service, resulting directly or indirectly from acts of God, acts of civil or military authorities, civil disturbances, wars, strikes or other labor disputes, fires, transportation contingencies, interruptions in telecommunications or internet services or network provider services, failure of equipment and or software, other catastrophes or any other occurrences which are beyond such party’s reasonable control.