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Driver Contract Agreement

 

Driver Agreement

 

This Driver Agreement (“Agreement”) is entered into on September 2, 2014 by and between adverCar, Inc. a Delaware corporation (“adverCar”), and (“Contractor”).

1.                  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 Vehicle.

2.                  Background 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. 

3.                  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.

4.                  Use of 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.

5.                  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.

6.                  Notice to 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.

7.                  Additional Driving Guidelines. 

(a)        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.

(b)        Drive safely and responsibly. Remember that at all times you are representing a brand.

(c)        Report any traffic incidents to adverCar within 24 hours.

(d)        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.

(e)        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.

8.                  Ownership 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.

9.                  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

10.              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.

11.              Term and Termination. The 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 Agreement. 

12.              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.

13.              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.

14.              Photo & 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.

15.       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).

ADVERCAR, INC.

 CONTRACTOR

 

By:                                                                                       

                                 Signature

By:                                                                                             

                                    Signature

 

Name:                                                                                 

                             

Name:                                                                                        

                              

Further Driver Restrictions

During any 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.

AGREED:

ADVERCAR, INC.

 CONTRACTOR

 

By:                                                                

                                 Signature

By:                                                                                                                                                

                                    Signature

 

Name:                                                            

                             

Name:                                                                                                                                             

                              

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