Driver Agreement (“Agreement”) is entered into on February 1, 2014 by and between
adverCar, Inc. a Delaware corporation (“adverCar”), and
Overview. adverCar is in the business of
placing advertising signs and stickers (“Signs”) on personal automobiles
(“Vehicles”) on behalf of certain parties conducting advertising (each an
“Advertiser”). Contractor agrees to allow adverCar to place Signs on his or her
Vehicle through a third party installer. adverCar may also install a global
positioning device known as a Marketing Impressions Meter (“MIM”) on the
Checks. adverCar reserves the right to
conduct background investigations and/or reference checks on all of its
potential Contractors, including you. This Driver Agreement, therefore, is
contingent upon a clearance of such a background investigation and/or reference
check, if any. Information
concerning the background investigation that adverCar may perform and your
consent thereto has been included with this Agreement. Your timely completion of this
paperwork concerning background check consent is a condition of this Agreement. The relevant background check
information is attached hereto as the Background Check Disclosure and
Authorization Form – Independent Contractor.
Payment. adverCar shall pay Contractor $100.00
per month. Payment shall be made on
via a method agreed upon by the parties (typically direct
deposit or check). The initial payment generally shall be made within 15
business days of the conclusion of the monthly advertisement campaign. From time
to time, Contractor may have the opportunity to participate in adverCar
Campaigns under a separate Driver Affiliate Agreement. Unless Contractor has
executed a Driver Affiliate Agreement with adverCar separately, this section 3
shall exclusively govern payment for the services rendered by Contractor to
adverCar. Certain terms of this Agreement are incorporated into the Driver
Affiliate Agreement by reference.
Vehicle. Contractor represents and warrants
that it is the sole owner of the Vehicle. Contractor shall maintain the Vehicle
in good operating condition and Contractor is responsible for all expenses of
maintaining and operating the Vehicle. Contractor will only use the Vehicle for
personal use in the normal course of Contractor’s operation of the Vehicle.
Contractor will not drive the Vehicle solely for the purpose of advertising.
Contractor agrees to supply all information reasonably requested by adverCar
regarding the Vehicle and its use during the term of the Agreement. Contractor
shall not allow any other person to drive the Vehicle while the Vehicle is
displaying Signs. During any
advertising campaign conducted on behalf of an Advertiser in which Contractor
has opted in to participate in such
campaign, Contractor shall only drive the Vehicle while the Vehicle is
displaying Signs (a) in accordance with the “Further Driver Restrictions” given
to Driver at the time that Driver agrees to this Agreement (which Further Driver
Restrictions are incorporated into this Agreement by reference); and (b) shall
not drive the Vehicle while the Vehicle is Displaying Signs onto any adult
entertainment establishment, including, without limitation, casinos, off-track
betting and exotic dancers clubs.
Safety. Contractor agrees to execute all
necessary consent forms for a background and driving record check. Contractor
has and will maintain liability insurance coverage on the Vehicle of at least
the minimum amounts required by the state in which Contractor operates the
Vehicle. Contractor shall provide
proof of insurance to adverCar upon request. Contractor shall have and maintain
a valid driver’s license. Contractor shall maintain and operate the Vehicle
according to all applicable laws and regulations, including without limitation
traffic laws and ordinances. Contractor will not engage in any conduct which may
reasonably be expected to harm the reputation of adverCar or any of its
advertisers in any way.
adverCar. Contractor shall notify adverCar
within 24 hours of: (i) loss or suspension of Contractor’s driver’s license or
driving privileges; (ii) any Vehicle breakdown or maintenance that would affect
the Signs; (iii) any accident or damage to any Sign, MIM or Vehicle; (iv) any
change of address or change of Route; (v) repossession or theft of the Vehicle;
(vi) loss of insurance; or (vii) any breach of Sections 4 or 5.
ONE STRIKE POLICY - adverCar drivers are expected to obey all traffic and
driving laws. If adverCar receives a complaint for aggressive driving,
or traffic violations, drivers will be removed from the adverCar program
immediately and permanently.
Drive safely and responsibly. Remember that at all times you are
representing a brand.
Report any traffic incidents to adverCar within 24 hours.
Vehicles with dents and scratches are not eligible to participate. If
your Vehicle, Signs or MIM become scratched or damaged during the term of this
Agreement, notify adverCar within 24 hours.
The exterior and interior of the Vehicle must be kept clean at all times.
For multi month campaigns, drivers are eligible for monthly car washes at local
adverCar partner facilities.
Rights. All Signs and the MIM installed on
the vehicle remain the property of the adverCar.
Contractor will be responsible for any damage to or loss of the Signs or
the MIM while installed on the Vehicle and such losses may be deducted from any
amounts due Contractor. adverCar
shall own all information gathered by the MIM, including without limitation
location information. Contractor hereby assigns to adverCar all rights
Contractor may have in such information. Contractor further grants adverCar the
irrevocable right to use pictures and likenesses of Contractor and the Vehicle
for advertising, trade or any lawful purposes.
Confidentiality. Contractor agrees that all
information that adverCar provides Contractor constitute “Proprietary
Information.” Contractor will hold
in confidence and not disclose or, except in driving the Vehicle, use any
Proprietary Information. However,
Contractor shall not be obligated under this paragraph with respect to
information Contractor can document is or becomes readily publicly available
without restriction through no fault of Contractor. Upon termination and as otherwise
requested by adverCar, Contractor will promptly return to adverCar all items and
copies containing or embodying Proprietary Information
Independent Contractor. Contractor acknowledges that
Contractor is an independent contractor and not an employee of the adverCar for
any purpose. Contractor is not
authorized and may not hold himself or herself out as a representative or agent
of adverCar or any Advertiser, and nothing in this Agreement shall convey any
authority to Contractor, express or implied, to negotiate, enter into any
contracts on behalf of the adverCar or any of its advertisers.
initial term of this Agreement is 30 days and the effective date of the
Agreement is the date that adverCar installs a Sign on Contractor’s Vehicle
(“Effective Date”). adverCar may
terminate this Agreement at any time upon notice. Contractor will make the
Vehicle available for removal of Signs and the MIM from the Vehicle prior to
selling or disposing of the Vehicle or upon expiration or termination of this
Indemnification. adverCar shall indemnify Contractor
for any fines issued by a governmental entity due solely to (i) the display of a
Sign that adverCar places on the Vehicle, or (ii) the placement of the MIM in
the Vehicle by adverCar. Contractor shall indemnify and protect, hold harmless,
and defend adverCar from any claims related to Contractor’s actions or
omissions, including without limitation Contractor’s breach of this Agreement or
failure to operate the Vehicle in a safe and legal manner. A party seeking
indemnity shall provide the other party with prompt written notice of the claim,
sole control over defense and settlement, and reasonable assistance with defense
and settlement. Contractor
will also indemnify, defend and hold
Advertiser, its parent, subsidiaries, affiliates, franchisees and each of its
respective directors, officers, employees, independent contractors and agents
(each an “Indemnified Party”) harmless to the fullest extent permitted by
law, from and against any actual or threatened disputes, claims, actions,
lawsuits or proceedings (each, a “Claim” and, collectively, “Claims”),
damages (including punitive, special, consequential, indirect, exemplary or
incidental damages), losses, actual attorneys’ fees, costs, expenses,
liabilities and settlement amounts (each, a “Loss” and, collectively, “Losses”),
whether or not well founded in law or fact, which arise out of or are directly
or indirectly related to this Agreement, any inaccuracy, untruthfulness or the
breach or alleged breach by Contractor of any representation or warranty under
this Agreement, including but not limited to Contractor’s obligation to comply
with all applicable federal and state laws, the performance or nonperformance by
Contractor of any obligations under this Agreement, or any acts or omissions of
Contractor occurring during the term of this Agreement, regardless of when the
Loss occurs or the Claim is asserted, commenced or threatened. Advertiser will be entitled to
select and retain counsel and control the defense of any third party claim (“Third
Party Claim”) subject to indemnification under this Section 11. In its defense of any such Third
Party Claim, Advertiser will act reasonably and in accordance with its good
faith business judgment. All
settlement amounts, costs and expenses will be borne by Contractor.
General. This Agreement will be interpreted
according to the laws of the State of California, and any dispute arising from
the interpretation hereof must be decided by arbitration according to the rules
of the American Arbitration Association at a hearing held in the City of San
Francisco, State of California.
Contractor may not assign this Agreement; adverCar may freely assign this
Agreement. In any action or proceeding to enforce rights under this Agreement,
the prevailing party will be entitled to recover reasonable costs and attorneys’
fees. In the event that any
provision of this Agreement shall be determined to be illegal or unenforceable,
that provision will be limited or eliminated so that this Agreement shall
otherwise remain in full force and effect and enforceable.
Media Waiver. By signing this document, you are
stating that you grant permission and
royalty free rights for adverCar Inc. and
participating advertisers to take pictures, or videos of you and/or your vehicle
and to use them for marketing purposes, such as press releases, adverCar and
advertiser websites as well as other promotional channels/media.
Removal of Signs. Contractor
agrees to remove decals within a reasonable time after campaign is over, unless
otherwise notified. adverCar reserves the right to visit Contractor’s house to
remove decals if they have not been removed.
16. LIMITATION OF LIABILITY. TO THE
MAXIMUM EXTENT PERMITTED BY LAW, EXCLUDING DAMAGES ARISING OUT OF EITHER PARTY’S
(I) BREACH OF CONFIDENTIALITY HEREUNDER, (II) MISAPPROPRATION OR MISUSE OF THE
OTHER PARTY’S INTELLECTUAL PROPERTY OR DATA,(III) INDEMNIFICATION OBLIGATIONS
HEREUNDER OR (IV) DAMAGES FOR DIRECT PERSONAL INJURIES WHICH ARE NOT ABLE TO BE
CONTRACTUALLY LIMITED BY LAW, IN NO EVENT SHALL ADVERCAR’S AGGREGATE LIABILITY
TO CONTRACTOR EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM ADVERCAR IN
THE TWELVE (12)-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH
CLAIM. NEITHER PARTY SHALL BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE,
SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL, OR OTHER DAMAGES OF ANY TYPE OR
KIND ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS AGREEMENT, EVEN IF THE
PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY’S LICENSORS HAVE BEEN
PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY
LAW, ALL CLAIMS UNDER THIS AGREEMENT FOR BREACH SHALL BE BROUGHT WITHIN TWELVE
(12) MONTHS FROM THE DATE THE BREACH OR THE CLAIM IS FIRST KNOWN OR REASONABLY
SHOULD HAVE BEEN KNOWN BY THE NON-BREACHING PARTY. FAILURE TO BRING SUCH CLAIMS
WITHIN SAID TIME FRAME SHALL BAR THE INJURED PARTY FROM BRINGING, COMMENCING OR
FILING ANY SUCH CLAIM(S).
advertising campaign conducted on behalf of McDonald’s USA, LLC (“McDonald’s”)
in which Contractor has opted in to participate in such McDonald’s campaign,
Contractor shall not drive the Vehicle while the Vehicle is displaying Signs
onto the premises of any competitor of McDonald’s, including, without
limitation, Wendy’s, Burger King, Taco Bell, Subway, Starbuck’s, Dunkin’ Donuts
and other quick service restaurant establishments.