RENTAL MANAGEMENT SERVICES AGREEMENT
Last Updates: April 5, 2019
This Services Agreement (“Agreement”) constitutes a legal agreement between an independent company in the business of renting Vehicle Assets (as defined below) (“Customer”) and FlexiiDrive B.V., a private limited liability company established in The Netherlands, having its offices at Paramaribostraat 90-2, 1058 NV, Amsterdam, The Netherlands, registered at the Amsterdam Chamber of Commerce under number 69954283 (“FlexClub”).
FlexClub provides FlexClub Services (as defined below) that enable the rental of Vehicle Assets between a Customer and a Renter authorized to provide passenger transportation services on approved Lead Generation Platforms.
Customer shall rent Vehicle Assets in the jurisdiction(s) in which it operates, and it desires to enter into this Agreement for the purpose of accessing and using the FlexClub Services to enhance and maximize utilization of its Vehicle Assets.
Customer acknowledges and agrees that FlexClub is a technology and asset management services provider that does not buy, rent, lease or sublease Vehicle Assets, function as a transportation carrier or agent for the transportation of passengers.
In order to use the FlexClub Services, Customer must agree to the terms and conditions that are set forth below. Upon Customer’s execution (electronic or otherwise) of this Agreement, Customer and FlexClub shall be bound by the terms and conditions set forth herein.
- “Affiliate” means any entity that, directly or indirectly, controls, is under the control of, or is under common control with a party, where control means having more than 50% of the voting stock or other ownership interests, the majority of the voting rights of such entity, the ability of such entity to ensure that such activities and business of that Affiliate are conducted in accordance with the wishes of that entity or the right to receive the majority of the income of that Affiliate on any distribution by it of all of its income or the majority of its assets on a winding up.
- “Country Addendum” means an addendum or supplemental information to this Agreement setting forth additional Territory-specific terms, as made available and as updated by FlexClub from time to time.
- “FlexClub Data” means all data related to the access and use of the FlexClub Services hereunder, including all data related to the Customer and Renter and their respective businesses.
- “FlexClub Services” means FlexClub’s electronic management and related services rendered via a digital technology platform, providing a digital marketplace that enables and connects Customers and Renters using approved Lead Generation Platforms; such FlexClub Services include access to FlexClub’s websites, related software, payment services as described in Section 4 below, and related support services systems, as may be updated or modified by FlexClub at its discretion from time to time.
- “Lead Generation Platform” include independent companies providing electronic services rendered via a digital technology platform that provides on-demand intermediary and related services that enable Renters to provide transportation services in their Territory.
- “Renter” means independent and authorized drivers providing passenger transportation services to third party users of approved Lead Generation Platforms in the Territory using a Customer’s Vehicle Asset: (a) who meets the then-current requirements of the Lead Generation Platform or any of its Affiliates in the Territory to be an active driver on their platform; (b) who the Lead Generation Platform, or any of its Affiliates in the Territory, authorizes to access their services to provide transportation services using Customer’s Vehicle Asset; and (c) who has entered into a Rental Addendum with the Customer.
- “Renter Addendum” means the terms and conditions that the Customer is required to enter into with a Renter prior to such driver using Vehicle Assets promoted using FlexClub Services.
- “Service Fee” has the meaning set forth in Section 4.4.
- “Territory” means the city or metro areas in which Customer and Renter are enabled by FlexClub Services.
- “User Information” means all information about a third party user made available to Customer or Renter in connection with their provision of transportation and/or other services.
- “Vehicle Asset” means any vehicle of Customer that: (a) meets the then-current requirements of an approved Lead Generation Platform or any of its Affiliates in the Territory; and (b) the Lead Generation Platform authorizes for use by a Renter for the purpose of providing transportation services in the Territory.
- Use of the FlexClub Services
- User IDs. FlexClub will issue each Customer and Renter a user profile to enable them to access and use FlexClub Services through a website in accordance with the Renter’s Addendum and this Agreement. Each user agrees that they will maintain their user IDs in confidence and not share their user IDs with any third party. Customer and Renter will immediately notify FlexClub of any actual or suspected breach or improper use or disclosure of their user IDs.
- Provision of FlexClub Services. A Customer or Renter’s request to access FlexClub Services may provide certain User Information via the website or otherwise. Customer and Renter acknowledge and agree that access to FlexClub Services may provide certain information about other third party users. Customer and Renter shall not use available personal data or otherwise Confidential Information for any reason other than for the purpose of fulfilling FlexClub Services. Customer and Renter further acknowledge and agree that: (a) they are solely responsible for determining the most effective and cost efficient manner to perform the renting of Vehicle Assets, and (b) except for the FlexClub Services, that they shall provide all necessary devices, equipment, tools, data plans, and other materials, at Customer’s and Renter’s own expense, necessary to use and benefit from a Lead Generation Platform.
- Customer’s Relationship with Renter. Customer acknowledges and agrees that Customer’s decision to rent a Vehicle Asset(s) to a Renter creates a legal and direct business relationship between Customer and the Renter, to which neither FlexClub nor its Affiliates in the Territory is a party. Neither FlexClub or its Affiliates in the Territory is responsible or liable for the actions or inactions of a Customer or Renter in relation to their activities with other third parties. The Customer or Renter shall have the sole responsibility for any obligations or liabilities to each other and/or third parties that arise from their respective roles and responsibilities. Customer acknowledges and agrees that it is 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 act or omission of a third party. Customer acknowledges and agrees that FlexClub may release the contact and/or insurance information of Customer and/or a Renter to a third party upon such party’s reasonable request. Customer shall also have the sole responsibility for any obligations or liabilities to the Renter that arises from its relationship with the Renter. Customer acknowledges and agrees that it exercises sole control over the Renter’s use of Customer’s Vehicle Asset and will comply with all applicable laws (including tax and vehicles maintenance and registration laws) governing or otherwise applicable to its relationship with the Renter. Customer shall require each Renter of a Vehicle Asset to execute (electronic or otherwise) a Renter Addendum (as may be updated from time to time) and shall provide a copy of each executed Renter Addendum, as required, to FlexClub. Customer acknowledges and agrees that FlexClub is a third party beneficiary to each Renter Addendum, and that, upon a Renter’s execution of the Renter Addendum (electronically or otherwise), FlexClub will have the irrevocable right (and will be deemed to have accepted the right unless it is rejected promptly after receipt of a copy of the executed Renter Addendum) to enforce the Renter Addendum against the Renter as a third party beneficiary thereof.
- Customer’s Relationship with Lead Generation Platforms. Customer acknowledges and agrees that the Lead Generation Platform’s provision to Customer or Customer’s Renter of an application and related services creates a legal and direct business relationship between the Customer and the Lead Generation Platform. FlexClub and its Affiliates in the Territory do not, and shall not be deemed to, direct or control Customer generally or in their performance under this Agreement specifically, including in connection with the operation of the Customer’s business, the provision of transportation services, the acts or omissions of the Customer, or the operation and maintenance of any vehicle. The Customer retains the sole right to determine when and for how long the Customer’s Vehicle Asset will utilize the Lead Generation Platform’s application or services. Customer acknowledges and agrees that it has complete discretion to operate its independent rental business at its own discretion, including the ability to use at any time a different online marketplace. For the sake of clarity, Customer understands that they retain the complete right to provide and/or rent Vehicle Assets through other software application services. FlexClub retains the right to, at any time in FlexClub’s sole discretion, deactivate or otherwise restrict any Customer from accessing or using FlexClub Services in the event of a violation of this Agreement, a violation the Renter Addendum, any Customer’s disparagement of FlexClub or any of its Affiliates, Customer’s act or omission that causes harm to FlexClub’s or its Affiliate’s brand, reputation or business as determined by FlexClub in its sole discretion. FlexClub also retains the right to deactivate or otherwise restrict any Customer or Renter from accessing or using FlexClub Services for any other reason at the sole and reasonable discretion of FlexClub.
- Location based Services. Customer acknowledges and agrees that each Vehicle Asset’s geolocation information must be provided to FlexClub Services via a Device in order to provide the complete suite of FlexClub Services. Customer acknowledges and agrees, and shall inform and obtain the consent of each Renter, that: (a) the Renter’s geo-location information will be monitored and tracked by the FlexClub Services at all times, and for as long at the Renter has possession of the Customer’s Vehicle Asset. In addition, FlexClub may monitor, track and share a Renter’s geo-location information obtained by the Device on each Vehicle Asset for safety, security, technical, marketing and commercial purposes, including to provide and improve FlexClub’s products and services.
- Management Services
- Renter Support Services. Customer acknowledges and agrees that FlexClub shall take reasonable measures and exercise complete discretion to ensure that each Renter shall at all times: (a) hold and maintain (i) a valid driver’s license with the appropriate level certification to operate the Vehicle Asset assigned to such Renter, and (ii) all licenses, permits, approvals and authority applicable to Customer and/or Renter that are necessary to provide passenger transportation services to third parties in the Territory; (b) possess the appropriate and current level of training, expertise and experience to provide transportation services in a professional manner with due skill, care and diligence; and (c) maintain high standards of professionalism, service and courtesy. Customer acknowledges and agrees that FlexClub reserves the right, at any time in FlexClub’s sole discretion, to restrict or terminate a Renter from accessing or using the FlexClub Services, if Customer or such Renter fails to meet the requirements set forth in this Agreement or the Renter Addendum.
- Vehicle Asset Support Services. Customer acknowledges and agrees that FlexClub shall take reasonable measures and exercise complete discretion to ensure that each Vehicle Asset at all times be: (a) properly registered and licensed to operate as a passenger transportation vehicle in the Territory; (b) that each Vehicle Asset is properly rented, or otherwise in Renter’s lawful possession; (c) suitable for performing the passenger transportation services as required by the Lead Generation Platforms; and (d) maintained in a safe, roadworthy and good operating condition, consistent with industry safety and maintenance standards for a vehicle of its kind or any additional standards or requirements in the applicable Territory, and in a clean and sanitary condition which shall include maintaining at all times valid certifications for each Vehicle Asset including, where applicable, in accordance with the terms of any relevant license.
- Documentation Support Services. To ensure Customer and Renter’s compliance with all requirements in Section 3.1 and 3.2 above, and to allow FlexClub and any of its Affiliates in the Territory to comply with their regulatory requirements, Customer must provide FlexClub with written copies of such license, permits, approvals, authority, registrations and certifications (“Documentation”) prior to the rental of any Vehicle Asset to Renter. Therefore, Customer must submit to FlexClub written evidence of all such Documentation as it is renewed. FlexClub shall, upon request, be entitled to review such licenses, permits, approvals, authority, registration, and certifications from time to time, and Customer’s failure to provide or maintain any of the foregoing shall constitute a material breach of this Agreement. Customer acknowledged and agrees that FlexClub and any of its Affiliates in the Territory shall independently verify Customer and/or any Renter’s Documentation from time to time in any way FlexClub deems appropriate in its reasonable discretion and Customer consents, and represents and warrants that it has obtained consent from each of its Renters, for FlexClub or any of its Affiliates in the Territory to undertake such verification.
- Financial Terms
- Rental Calculation and Customer Payment. Customer is entitled to charge a weekly rental rate base rental price for the use of Customer’s Vehicle Asset, where such weekly rental rate is calculated based on the best available data on commercially reasonable rates (“Rental Price”), as determined by FlexClub, in each applicable Territory (“Rental Calculation”). Customer: (i) appoints FlexClub as Customer’s limited payment collection agent solely for the purpose of accepting the Rental Price from the Renter, on behalf of the Customer via the payment processing functionality facilitated by the FlexClub Service; and (ii) agrees that payment made by Renter to FlexClub shall be considered the same as payment made directly by Renter to Customer. In addition, the parties acknowledge and agree that as between the Customer and FlexClub, the weekly Rental Price is a recommended amount, and the primary purpose of the pre-arranged Rental Price is to act as the default amount in the event Customer does not negotiate a different amount. Customer shall always have the right to set a Rental Price that is more or less than the pre-arranged Rental Price. FlexClub shall consider all such requests from Customer in good faith. FlexClub agrees to remit to Customer on at least a weekly basis: (a) the Rental Price less the applicable Service Fee; and (b) depending on the Territory, certain required taxes and ancillary fees. If Customer has separately agreed, other amounts including vehicle financing payments or fleet maintenance costs paid directly by FlexClub, may be deducted from the Rental Price prior to remittance to Customer, the order of these deductions from the Rental Price shall be determined exclusively by FlexClub.
- Change to Rental Calculation. FlexClub reserves the right to change the Rental Calculation at any time in FlexClub’s discretion based upon local market factors, and FlexClub will provide notice to Customer in the event of such change that would result in a change in the recommended Rental Price. Continued use of the FlexClub Services after any such change in the Rental Calculation shall constitute Customer’s consent to such change.
- Rental Price Adjustment. FlexClub and/or its Affiliates in the Territory reserve the right to reduce or increase the Rental Price for appropriate business reasons. FlexClub’s decision to adjust the Rental Price in any manner shall be exercised in a reasonable manner.
- Service Fee. In consideration of FlexClub’s provision of the FlexClub Services, Customer agrees to pay FlexClub a service fee calculated as a percentage of the full Rental Price charged for each Vehicle Asset under FlexClub’s management, and as provided to Customer via email or otherwise made available electronically by FlexClub from time to time for the applicable Territory (“Service Fee”). Unless regulations applicable to Customer’s Territory require otherwise, applicable taxes will be calculated and charged on the Rental Price, and FlexClub shall calculate Service Fee based on Rental Price inclusive of such taxes. FlexClub reserves the right to change the Service Fee at any time in FlexClub’s discretion based upon services offered and local market factors, and FlexClub will provide notice to Customer in the event of such change. Continued use of the FlexClub Services after any such change in the Service Fee calculation shall constitute Customer’s consent to such change.
- Receipts. As part of FlexClub’s Services, FlexClub provides Customer a system for the delivery of receipts to Renters for the Rental Price. On a weekly basis, FlexClub prepares applicable receipt and issues such receipts to the Renter via email on behalf of the Customer. Such receipts are also provided via email or the online portal available to the Customer on the FlexClub Services. Receipts include the breakdown of amounts charged to the Renter and may include specific information about the Customer and the Renter, including the Customer’s entity name and contact information and the Renter’s name and other identifying details. Customer shall inform Renters that any correction to a receipt for services must be submitted to FlexClub in writing within three (3) business days after receipt of such invoice. Absent such a notice, FlexClub shall not be liable for any mistakes in or corrections to the receipt or for the recalculation or disbursement of the Rental Price.
- No Additional Amounts. Customer acknowledges and agrees that, for the mutual benefit of the parties, through advertising and marketing, FlexClub and its Affiliates may seek to attract new Renters and customers to FlexClub and to increase existing Renters and customer’s use of FlexClub’s Services and technologies. Customer acknowledges and agrees such advertising or marketing does not entitle Customer to any additional monetary amounts beyond the amounts expressly set forth in this Agreement.
- Taxes. Customer acknowledges and agrees that it is required to: (a) complete all tax registration obligations and calculate and remit all tax liabilities related to the provision of Vehicle Asset for rental as required by the applicable law; and (b) provide FlexClub with all relevant tax information (including a valid VAT number belonging to Customer and/or any Renter, if obtaining a VAT number is required of Customer and/or Renter by applicable law). Customer further acknowledges and agrees that Customer and each of Renters are responsible for taxes on their own income arising from the performance of Vehicle Assets rentals and the provision of transportation services. Notwithstanding anything to the contrary in the Agreement, FlexClub may in its reasonable discretion based on the applicable tax and regulatory considerations, collect and remit taxes resulting from Customer’s and/or any Renter’s business activities and/or provide any of the relevant tax information Customer and/or and Renter had provided pursuant to the foregoing requirements in this Section 4.7 directly to the applicable governmental tax authorities on the Renter’s behalf or otherwise.
- Proprietary Rights; License
- License Grant. Subject to the terms and conditions of this Agreement, FlexClub hereby grants Customer a non-exclusive, royalty-free, non-transferrable, non-sublicensable, non-assignable license, during the term of this Agreement, to use (and allow its Renters to use) the FlexClub technologies and marketplace via the website in connection of the provision by FlexClub of the FlexClub Services solely for the purpose of providing Vehicle Asset rental management and support services to Customers and Renters. All rights not expressly granted to Customer are reserved by FlexClub, its Affiliates and their respective licensors.
- Restrictions. Customer 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 FlexClub Services and technologies in any way; (b) modify or make derivative works based upon the FlexClub services; (c) improperly use the FlexClub Services or technologies, including creating internet “links” to any part of the FlexClub Services or website, “framing” or “mirroring” any part of the FlexClub Services or website on any other websites or systems, or “scraping” or otherwise improperly obtaining data from the FlexClub Services or website; (d) reverse engineer, decompile, modify, or disassemble the FlexClub Services, or website, except as allowed under applicable law; or (e) send spam or otherwise duplicative or unsolicited messages. In addition, Customer shall not, and shall not allow any other party to, access or use the FlexClub Services or website to: (i) design or develop a competitive or substantially similar product or service, (ii) copy or extract any features, functionality, or content thereof; (iii) launch or cause to be launched on or in connection with the FlexClub Services an automated program or script, including web spiders, crawlers, robots, indexers, bots, viruses or worms, or any program which may multiple server requests per second, or unduly burden or hinder the operation and/or performance of the FlexClub Services or its related system or networks, all except to the extent such actions must be allowed under Dutch law.
- Ownership. The FlexClub Services, website and FlexClub Data, including all intellectual property rights therein, are and shall remain the property of FlexClub, its Affiliates or their respective licensors. Neither this Agreement nor Customer’s use of the FlexClub Services, website or FlexClub Data conveys or grants to Customer any rights: (a) In or related to the FlexClub Services, website or FlexClub Data, except for the limited license granted above; or (b) to use or reference In any manner FlexClub’s, its Affiliates’, or their respective licensors’ company names, logos, product and service names, trademarks, service marks or other indicia of ownership. Additionally, Customer acknowledges FlexClub’s rights in its FLEXCLUB family of trademarks and names, including FLEXIIDRIVE, and FLEXCLUB, alone and in combination with other letters, punctuation, words, symbols and/or designs, the FlexClub Logo (“FLEXIIDRIVE and FLEXCLUB Marks and Names”). Customer agrees it will not, and it will ensure that its Renters do not, try to register or otherwise claim ownership in any of the FLEXIIDRIVE or FLEXCLUB Marks and Names, alone or in combination with other letters, punctuation, words, symbols and/or designs, or in any confusingly similar mark or name.
- 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 FlexClub Data, Renter profile information, User Information, and other 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 FlexClub, its internal record-keeping requirements).
- Notwithstanding the foregoing, Confidential Information shall not include any information to the extent it: (a) is or becomes part of the public domain through no act or omission on the part of the receiving party; (b) was possessed by the receiving party prior to the date of this Agreement without an obligation of confidentiality; (c) is disclosed to the receiving party by a third party having no obligation of confidentiality with respect thereto; or (d) is required to be disclosed pursuant to law, court order, subpoena or governmental authority, provided the receiving party notifies the disclosing party thereof and provides the disclosing party a reasonable opportunity to contest or limit such required disclosure.
- Customer agrees to maintain during the term of this Agreement on all Vehicles Assets owned by Customer and operated by its Renters commercial automobile liability insurance that provides protection against bodily injury and property damage to third parties at levels of coverage that satisfy all applicable laws in the Territory. This coverage must also include any no-fault coverage required by law in the Territory that may not be waived by an insured.
- Customer agrees to maintain during the term of this Agreement commercial general liability and all other insurance that provides protection against personal injury, advertising injury and property damage to third parties and all other required policies for similarly situated renters at levels of coverage required by all applicable laws in the Territory.
- Customer shall add FlexClub (or any Affiliate which may be designated by FlexClub from time to time) to Customer’s insurance policies required in Sections 8.1 and 8.2 above as an additional insured, and shall, upon FlexClub’s request, provide FlexClub with a copy of such insurance certificate(s) within seven (7) days of such request. FlexClub may, at any time, verify Customer’s and its Drivers’ insurance coverage with insurance providers or third parties.
- Customer shall, and shall ensure that its Renters shall, notify FlexClub (or any Affiliate that may be designated by FlexClub from time to time) as soon as reasonably possible, and in any case within thirty (30) days, of any incident which may give rise to an insurance claim.
- Representations and Warranties; Disclaimers
- By Customer. Customer hereby represents and warrants that: (a) it has full power and authority to enter into this Agreement and perform its obligations hereunder; (b) it is duly organized, validly existing and in good standing under the laws of the jurisdiction of its origin; (c) it has not entered into, and during the term will not enter into, any agreement that would prevent it from complying with this Agreement; (d) it will comply with all applicable laws in its performance of this Agreement, including holding and complying with all permits, licenses, registrations and other governmental authorizations necessary to provide (i) transportation services using the Renter and Vehicle Assets pursuant to this Agreement, and (ii) passenger transportation services to third parties in the Territory generally; and (e) it shall require all Renters to comply with the Renter Addendum, the applicable terms and conditions set forth in this Agreement and all applicable laws.
- Disclaimer of Warranties. FlexClub provides, and Customer accepts, the FlexClub Services and website on an “as is” and “as available” basis. Neither FlexClub nor any of its Affiliates in the Territory represents, warrants or guarantees that Customer’s or any Renter’s access to or use of the FlexClub Services or website: (a) will be uninterrupted or error free; or (b) will result in any requests for transportation services through Lead Generation Platforms. FlexClub functions as an on-line marketplace offering rental and related management services only and makes no representations, warranties or guarantees as to the actions or inactions of the end-users of Customer’s and Renter’s services who may request (via a Lead Generation Platform in the Territory) or receive transportation services from Renter. By allowing Customer’s Vehicle Asset to be used on Lead Generation Platforms, Customer acknowledges and agrees that the Renter and Vehicle Asset may be introduced to a third party that may pose harm or risk to the Renter or Vehicle Asset. Customer and Renters are advised to take reasonable precautions with respect to interactions with third parties encountered in connection with the use of Lead Generation Platforms. Notwithstanding FlexClub’s appointment as the limited payment collection agent of Customer for the purpose of accepting payment from Renters on behalf of Customer as set forth in Section 4 above, FlexClub expressly disclaims all liability for any act or omission of Customer, any Renter, or other third party.
- No Service Guarantee. Neither FlexClub nor any of its Affiliates in the Territory guarantees the availability or uptime of the FlexClub Services or website. Customer and Renter acknowledges and agrees that the FlexClub Services or website may be unavailable at any time and for any reason (e.g., due to scheduled maintenance or network failure). Further, the FlexClub Services or website may be subject to limitations, delays, and other problems inherent in the use of the internet and electronic communications, and neither FlexClub nor any of its Affiliates in the Territory is responsible for any delays, delivery failures, or other damages, liabilities or losses resulting from such problems.
- Customer shall indemnify, defend (at FlexClub’s option) and hold harmless FlexClub 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, statutory contributions and taxes arising out of or related to: (a) Customer’s breach of its representations, warranties or obligations under this Agreement; or (b) a claim by a third party users (including regulators and governmental authorities) directly or indirectly related to Customer’s provision of transportation services or use of the FlexClub Services.
- As between Customer and FlexClub, Customer is and shall be solely responsible, where relevant and appropriate, for its Renters’ provision of transportation services. As such, Customer shall Indemnify, defend (at FlexClub’s option) and hold harmless FlexClub 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, statutory contributions and taxes directly or indirectly arising out of or related to its Renters’ provision of transportation services or use of the FlexClub Services.
- Limits of Liability. FlexClub and its Affiliates shall not be liable under or related to this Agreement for any of the following, whether based on contract, tort or any other legal theory, even if a party has been advised of the possibility of such damages: (i) any incidental, punitive, special, exemplary, consequential, or other indirect damages of any type or kind; or (ii) Customer’s, Renter’s or any third party’s property damage, or loss or inaccuracy of data, or loss of business, revenue, profits, use or other economic advantage. Except for FlexClub’s obligations to pay amounts due to Customer pursuant to Section 4 above, but subject to any limitations or other provisions contained in this Agreement which are applicable thereto, in no event shall the liability of FlexClub or its Affiliates under this Agreement exceed the amount of Service Fees actually paid to or due to FlexClub hereunder in the six (6) month period immediately preceding the event giving rise to such claim. Customer acknowledges and agrees that any and all claims Customer has or purports to have against FlexClub and/or its Affiliates should be notified to FlexClub and/or its Affiliates within one (1) year after the event(s) that gave rise to such claim and that Customer forfeits all rights in respect of that claim if Customer fails to do so. Nothing in this Section 11 purports to limit or exclude liability that cannot be limited or excluded by applicable law.
- Term and Termination
- Term. This Agreement shall commence on the date that the Agreement is executed by Customer (electronically or otherwise) and shall continue until terminated as set forth herein.
- Termination. Either party may terminate this Agreement: (a) without cause at any time upon seven (7) days prior 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, FlexClub may terminate this Agreement or deactivate Customer or a particular Renter immediately, without notice, with respect to Customer and/or any Renter in the event Customer and/or any Renter, as applicable, no longer qualifies, under applicable law or the standards and policies of FlexClub, to provide transportation services with an approved Lead Generation Platform or to operate the Vehicle Asset, or as otherwise set forth in this Agreement.
- Effect of Termination. Upon termination of the Agreement, Customer and all Affiliates and Renters, as applicable, shall immediately cease all use of the FlexClub Services and website. Outstanding payment obligations and Sections 1, 2.3, 4.6, 4.7, 5.3, 6, 7, 9, 10, 11, 12.3, 13, 14 and 15 shall survive the termination of this Agreement.
- Relationship of the Parties
- Except as otherwise expressly provided herein with respect to FlexClub acting as the limited payment collection agent solely for the purpose of collecting payment from Renter on behalf of Customer, the relationship between the parties under this Agreement is solely that of independent contractors. The parties expressly agree that: (a) this Agreement is not an employment agreement, nor does it create an employment relationship (including from a labor law, tax law or social security law perspective), between FlexClub (or any of its Affiliates in the Territory) and a Customer or any Renter; and (b) no joint venture, partnership, or agency relationship exists between FlexClub and Customer or FlexClub and any Renter.
- Customer has no authority to bind FlexClub and undertakes not to hold itself out, and to ensure that each Renter does not hold himself or herself out, as an employee, agent or authorized representative of FlexClub or its Affiliates. Where, by implication of mandatory law or otherwise, Customer or any FlexClub may be deemed an employee, agent or representative of FlexClub, Customer undertakes and agrees to indemnify, defend (at FlexClub’s option) and hold FlexClub and its Affiliates harmless from and against any claims by any person, entity, regulators or governmental authorities based on such implied employment, agency or representative relationship.
- Customer expressly acknowledges and agrees that by agreeing to the terms and conditions of this Agreement, Customer intends to provide rental and transportation services in a non-incidental manner and, as such, FlexClub will consider Customer and its Drivers to be taxable persons in accordance with all applicable VAT and indirect tax legislation.
- Miscellaneous Terms
- Modification. FlexClub reserves the right to modify the terms and conditions of this Agreement or the Renter Addendum at any time, effective upon publishing an updated version of this Agreement or the Renter Addendum, as applicable, on the online portal available to Customer on the FlexClub Services. FlexClub reserves the right to modify any information referenced at hyperlinks from this Agreement from time to time. Customer hereby acknowledges and agrees that, by using the FlexClub Services, or using the website, Customer is bound by any future amendments and additions to this Agreement, information referenced at hyperlinks herein, or documents incorporated herein, including with respect to Rental Calculations. Continued use of the FlexClub Services or website after any such changes shall constitute Customer’s consent to such changes.
- Supplemental Terms. Supplemental terms may apply to Customer’s and Renter’s use of the FlexClub Services, such as use policies or terms related to certain features and functionality, which may be modified from time to time (“Supplemental Terms”). Customer may be presented with certain Supplemental Terms from time to time. Supplemental Terms are in addition to, and shall be deemed a part of, this Agreement. Supplemental Terms shall prevail over this Agreement in the event of a conflict.
- Severability. If any provision of this Agreement is held to be illegal, invalid or unenforceable, in whole or in part, under any law, such provision or part thereof shall to that extent be deemed not to form part of this Agreement but the legality, validity and enforceability of the remainder of this Agreement shall not be affected. In that event, the parties shall replace the illegal, invalid or unenforceable (part of the) provision with a (part of a) provision that is legal, valid and enforceable and that has, to the greatest extent possible, a similar effect as the illegal, invalid or unenforceable (part of the) provision, given the contents and purpose of this Agreement .
- Assignment. Customer may not assign or transfer this Agreement or any of its rights or obligations hereunder, In whole or in part, without the prior written consent of the other party. FlexClub may assign or transfer this Agreement or any or all of its rights or obligations hereunder, in whole or in part, under this Agreement from time to time without consent.
- Entire Agreement. This Agreement, including the recitals and all Supplemental Terms, constitutes the entire agreement and understanding of the parties with respect to its subject matter and replaces and supersedes all prior or contemporaneous agreements or undertakings regarding such subject matter. In this Agreement, the words “Including” and “include” mean “including, but not limited to.” The recitals form a part of this Agreement.
- No Third Party Beneficiaries. Save where this Agreement expressly confers rights on FlexClub Affiliates in the Territory, the parties acknowledge that there are no third party beneficiaries to this Agreement. Nothing contained in this Agreement is intended to or shall be interpreted to create any third party beneficiary claims.
- Notices. Any notice delivered by FlexClub to Customer under this Agreement will be delivered by email to the email address associated with Customer’s account or by posting on the online port all available to the Customer on the FlexClub Services. Any notice delivered by Customer to FlexClub under this Agreement will be delivered by contacting FlexClub at XXX. Additional Territory-specific notices may be required from time to time.
- Governing Law; Arbitration. Except as otherwise set forth in this Agreement, this Agreement shall be exclusively governed by and construed in accordance with the laws of The Netherlands, excluding its rules on conflicts of laws. The Vienna Convention on the International Sale of Goods of 1980 (CISG) shall not apply. Any dispute, conflict or controversy, howsoever arising out of or broadly in connection with or relating to this Agreement, including those relating to its validity, its construction or its enforceability, shall be first mandatorily submitted to mediation proceedings under the international Chamber of Commerce Mediation Rules (“ICC Mediation Rules”). If such dispute has not been settled within sixty (60) days after a Request for Mediation has been submitted under such ICC Mediation Rules, such dispute can be referred to and shall be exclusively and finally resolved by arbitration under the Rules of Arbitration of the International Chamber of Commerce (“ICC Arbitration Rules”). The ICC Rules’ Emergency Arbitrator provisions are excluded. The dispute shall be resolved by one (1) arbitrator to be appointed in accordance with the ICC Rules. The place of arbitration shall be Amsterdam, The Netherlands. The language of the arbitration shall be English. The existence and content of the mediation and arbitration proceedings, including documents and briefs submitted by the parties, correspondence from and to the ICC, correspondence from the mediator, and correspondence, orders and awards issued by the sole arbitrator, shall remain strictly confidential and shall not be disclosed to any third party without the express written consent from the other party unless (l) the disclosure to the third party is reasonably required in the context of conducting the mediation or arbitration proceedings, and (ii) the third party agrees unconditionally in writing to be bound by the confidentiality obligation stipulated herein. By clicking “I accept” or signing below (as such may be required by applicable law), Customer expressly acknowledges that Customer has read, understood, and taken steps to thoughtfully consider the consequences of this Agreement, that Customer agrees to be bound by the terms and conditions of this Agreement, and that Customer is legally competent to enter into this Agreement with FlexClub.