Car Owner Agreement

20 Dec 2019

MEDIER PTY LTD ACN 631 907 312 of Level 45, 680 George Street Sydney NSW 2000 (Company)

Reward term – Effective on 20th Dec. 2019

(a) Reward program: no less than 1 credit per click on ads on the Company’s App. The credits can be accumulated to purchase products provided by Medier in the Driver’s App.

(b) The Car Owner must pay $125+GST in the Company to join the Company’s reward program (including the tablet $100, the rack $20 and the cable $5).

(c) The Car Owner can refund the amount ($125+GST) at any time by returning the tablet, rack and cable to the Company.

This Agreement contains the terms and conditions in relation to the Car Owner’s use of the Company’s App and Device and governs the relationship between the parties. “We,” “us,” “our,” and “Medier” refers to Medier Pty Ltd and any of its affiliate companies. “You“, “your” and “the Car Owner” refers to the individual entering into this Agreement. By using and registering an account with us, you agree and acknowledge to these terms of use.

(a) to be bound by this Agreement including Medier Policies; and

(b) you have independently evaluated the Company’s App, Device and otherwise and are not relying on any representation, guarantee or statement other than as expressly set out in this Agreement. 

If you do not agree, do not use or register an account with us. We further reserve the right to vary, amend or modify any terms or clauses within this Agreement. You acknowledge your responsibility to check the terms or clauses under this Agreement periodically for any changes. Further, you accept and agree that your continued use of the Company’s App and/or Device means that you accept and agree to the above mentioned changes.

Definitions

Application Terms” refers to the details as set out on Page 1 of this Agreement.

Additional Payment Items” refers to the items and its respective payment amounts as set out under the Payment Terms.

Bonus” refers to the amount calculated as set out under the Payment Terms.

Company’s App” means the program, software, functions, materials and information developed by the Company to display the Display Ads and includes all interface, feeds, APIs or other mechanisms so utilised by the Company.

Driver’s App” means the program, software, functions, materials and information developed by the Company to manage all the Car Owners and includes all interface, feeds, APIs or other mechanisms so utilised by the Company.

Confidential Information”  includes any and all non-public information relating to this Agreement, Device, Display Ads, or its business, operations, financial affairs, performance, assets, pricing and pricing strategies, technology, research and development, processes, products, contracts, customers, licensees, sublicensees, suppliers, personnel, plans or prospects, whether or not in written form and whether or not expressly designated as confidential, including any such information consisting of or otherwise relating to trade secrets, know-how, technology (including software and programs), designs, drawings, photographs, samples, processes, license or sublicense arrangements, formulae, proposals, product specifications, customer lists or preferences, referral sources, marketing or sales techniques or plans, operating manuals, service manuals, financial information or projections, lists of suppliers or distributors or sources of supply.

Deposit Fee” means the fee as set out under the Payment Terms.

Device” means the electronic device such as screen tablets, utilised or developed by the Company that is installed with, contains or operates the Company’s App, websites, content and products and includes all accompanying mounts, mounting brackets, adapters, socket arms or similar equipment.

Display Ads” means the advertisements, any information, data, photographs, images, videos and other materials so displayed on the Company’s App.

Medier Policies” refers to all policies, guidelines or similar items pertaining to the use of the Company’s App and display of the Display Ads.

Monthly Fee” means the fee as set out under the Payment Terms and is payable by the Company to the Car Owner pursuant to this Agreement.

Daily Fee” means the fee as set out under the Payment Terms and is payable by the Company to the Car Owner pursuant to this Agreement.

Payment Terms” refers to the payment of fees by one party to the other as set out on Page 1 of this Agreement.

1. Company’s App

The Car Owner agrees to carry, mount and put on display the Device within the Car Owner’s vehicle to facilitate the display of the Display Ads pursuant to the terms as set out in this Agreement. Unless otherwise agreed with Medier, the Company’s Device is assigned to the Car Owner solely for the purposes of displaying the Display Ads. The Car Owner further acknowledges that Medier does not provide the Device, Company’s App or other products as a transportation or logistics service or function as a transportation carrier.

2. Licence

2.1 During the term of this Agreement, Medier grants the Car Owner a limited, non-exclusive, non-sublicensable, revocable, non-transferrable licence to access and use the Company’s App along with any content, information and related materials that may be made available through the Company’s App on the Device.

2.2 You may not

(a) remove any copyright, trademark or other proprietary notices from the Company’s App,

(b) reproduce, modify or prepare any derivative works based upon, distribute, license, lease, sell, resell, transfer, display or otherwise exploit the Company’s App except as expressly permitted by Medier in writing;

(c) decompile, reverse engineer or disassemble the Company’s App except as may be permitted by the applicable law and permitted by Medier in writing;

(d) cause or launch any programs or scripts for the purpose of scraping, indexing, surveying, or otherwise data mining any portion of the Company’s App or unduly burdening or hindering the operation and/or functionality of any aspect of the Company’s App; or

(e) attempt to gain unauthorized access to or impair any aspect of the Company’s App or its related systems or networks.

2.3 You acknowledge that the Company’s App is made available to other transportation network company drivers, permit holders or licensees.

2.4 The Company’s App may be made available or accessed in connection with third party services and content that Medier does not control. You acknowledge that

(a) different terms of use and privacy policies may apply to your use of such third party services and content;

(b) Medier does not endorse such third party services and content; and

(c) in no event shall Medier be responsible or liable for any products or services of such third party providers.

Additionally, Apple Inc., Google, Inc., Microsoft Corporation and/or their applicable international subsidiaries and affiliates will be third-party beneficiaries to this contract if you access the the Company’s App using applications developed each of these companies respectively. Your access to the Company’s App using these devices is subject to terms set forth in the applicable third party beneficiary’s terms of service. These third party beneficiaries are not parties to this contract and are not responsible for the provision or support of the Company’s App in any manner.

3. Reward Terms

3.1 The Company reserves the right to reward Car Owners based on any metric/payment plan in the Company’s sole discretion.

3.2 The Car Owners must both check-in on the Car Owner’s account (herein referred to as “Wallet”) and keep the Device and the Company’s App operational on each driving day to activate tracking system. No reward is payable for failure to check-in on Car Owner’s account or keep the Device and the Company’s App operational.

3.3 The reward is payable by the Company into the Car Owner’s account (herein referred to as “Wallet”) on the Company’s App on daily basis.

3.4 The amount of credits in the Wallet are made available for the Car Owner to purchase any products provided by Medier in the Driver’s App, subject to the following conditions. 
(a) Credits will only be used to purchase the products while in stock. 
(b) Extra fee may include to deliver purchased products to the Car Owners.

3.5 Medier may from time to time at tis discretion offer bonus credits (“Bonus Credits”). Medier will communicate on the Company’s App or the Company’s official website if, how and when Bonus Credits will be provided.

3.6 The remaining amount in the “Wallet” before Dec. 20th 2019 will be transferred to credits as $1 = 10 credits

4. Your Responsibilities

4.1 During the term of this Agreement, the Car Owner must register for and maintain an active user account with the Company (“Account”) through the Company’s App. The Car Owner acknowledges and agrees to:

(a) the submission of personal information, including but not limited to your name, address, mobile phone number and age, and a valid payment method such as details of an Australian bank or another accepted payment partner;

(b) maintain accurate, complete, and up-to-date information in your Account;

(c) are responsible for all activity that occurs under your Account; and

(d) maintain the security and secrecy of your Account username and password at all times

(e) The Car Owners must have on average 75 trips per week (in any 3 months period).

(f) The Car Owners must keep the device charged, secured, viewable to passengers and broadcasting content.

Your failure to maintain accurate, complete, and up-to-date Account information, such as having an invalid or expired payment method, may result in your inability to access and use the Company’s App or Medier’s termination of this Agreement with you.

4.2 The Car Owner agrees and acknowledges that you are:

(a) responsible for the care and security of the Device;

(b) to take good care of the Device, protecting its functionality and appearance;

(c) to report any damage, loss, theft or malfunction to the Company promptly;

(d) to notify the Company for not being able to drive and keep the Device operational for more than 20 days;

(e) to receive SMS messages for general communications from the Company. Messages & data rates may apply. To stop receiving SMS messages from the Company, the Car Owner may reply STOP to any such message at any time;

(f) to return the Device in good condition should this Agreement be terminated in accordance with clause 14.

4.3 The Car Owner expressly agrees not to:

(a) use the Device for any other purpose than otherwise agreed in this Agreement;

(b) use the Device for personal profit purposes;

(c) use the Device for the unlawful transmission or storage of copyrighted materials;

(d) install other program, software, functions, materials and information or otherwise onto the Device unless previous agreed with the Company in a separate agreement;

(e) intentionally or otherwise modify network configuration or otherwise interfere with the function of the Device;

(f) intentionally or otherwise modify, upgrade or attempt to repair the Device without written consent of the Company;

(g) intentionally or otherwise transmit viruses or other malicious computer programs via the Device or the Company’s App;

4.4 During the term of this Agreement, you represent and warrant that:

(a) the Device is kept mounted and on display; and

(b) the Company’s App is kept running and operational,

at all times during your shift with the transportation network company. This representation subsists despite completion of this Agreement.

4.5 The Car Owner acknowledges and assumes liability for use of the Device and the Company’s App and assumes responsibility for any claims arising there from made against us pursuant to the Device and the Company’s App.

5. Company’s Responsibilities  

5.1 The Company reserves the absolute and sole right to allocate, determine and provide any Device to you.

5.2 During the term of this Agreement, the Company is responsible for the maintenance, replacement or repair of any damage or destruction of the Device due to fair wear and tear.

5.3 The Company reserves the absolute and sole right to:

(a) update, re-write or re-develop the Company’s App;

(b) determine the type, variety, number, size, and other associated aspects of the Display Ads;

(c) re-design, modify and remove or discontinue offering any or all aspects of the Display Ads;

(d) suspend any of Display Ads campaigns or reject or remove Display Ads,

at any time in the Company’s sole discretion without notice to you.

6. Term of Agreement

The term of this Agreement begins upon the date so dated on this Agreement shall continue until terminated by either party in accordance with Clause 14.

7. Medier Policies

You will at all times comply with the policies, guidelines and terms pertaining to this Agreement. You will provide us with any information that we request to verify your compliance with this Agreement or Medier Policies.

8. Damage, Destruction, Theft or Stolen Device

8.1 The Car Owner agrees to be responsible for the care and security of the Device so assigned to them. Where there is damage or destruction to the Device, the Car Owner is responsible to promptly advise the Company so as to enable the Company to repair, replace or take any other reasonable cause of action.

8.2 Where damage and destruction of the Device is a result of negligence, abuse or misuse of the Car Owner’s, its agent’s or employee’s, the Company may terminate this Agreement with immediate effect and clause 14 applies.

8.3 The Car Owner agrees to promptly notify the Company of any theft or stolen Device and to provide reasonable assistance to the Company for the purposes of any insurance claims, legal action or otherwise.

9. Data Collection Consent

The Car Owner agrees and consents to the Company collecting data and information relating each shift with the transportation network company including, but not limited to, the geographical location and duration of each drive and shift, for the Company’s own purpose and use.

10. Car Owner Representations and Warranty

You represent and warrant that:

(a) if you are a business or legal entity, the business or legal entity is duly organised, validly existing and in good standing under the laws of the country in which your business or legal entity is registered;

(b) you have the requisite right, power and authority to enter into this Agreement and perform your obligations;

(c) you and your agents will comply with all applicable laws, standards, codes of conduct in the driving of the vehicle;

(d) you have the right and/or licences and/or consent to drive your vehicle in Australia and with a transportation network company; and

(e) nothing in the registration, application and use of your Account that you submit to us is false or misleading.

11. Disclaimer

11.1 The Company disclaims all representations and warranties, express, implied or statutory, not expressly set out in these terms, including the implied warranties of merchantability, fitness for a particular purpose and non-infringement.

11.2 The Company makes no representation, warranty, or guarantee regarding the reliability, timeliness, quality, suitability or availability of the Company’s App and Device or any services or goods requested through the use of the Company’s App and Device, or that the Company’s App and Device will be uninterrupted or error-free.

11.3 The Company does not guarantee the quality, suitability, safety or ability of third party providers. you agree that the entire risk arising out of your use of the Company’s App and Device, and any service or good requested in connection therewith, remains solely with you, to the maximum extent permitted under applicable law.

12. Indemnity and Limitation of Liability  

12.1 The Car Owner agrees to release, indemnify and will continue to indemnify the Company, our affiliates and each of our and their respective officers, directors, employees, agents, successors, assigns and representatives, from and against any and all costs, losses, damages, liabilities, judgments and expenses (including reasonable fees of legal representatives and other professionals) arising out of or in connection with any claim , demand made or action commenced by any person or corporation or entity with respect:

(a) your participation in or use of the Device and the Company’s App;

(b) your actual or alleged breach of any representation, warranty or obligation in this Agreement or the Medier Policies;

(c) the mounting of the Device in your car;

(d) engaging in acts or practices that are unfair or deceptive in connection with the Device or the Company’s App, including representing that the Device or Display Ads are unfair, deceptive or misleading, or that contain false or inaccurate information or unsubstantiated claim;

12.2 The Car Owner agrees that the Company will, in no event, be liable for any indirect, special or consequential damages or any loss of revenue, profits, or data arising in connection with this Agreement, the Device or the Company’s App irrespective if the Company has been advised as to the possibility of such damages.

12.3 The Car Owner further acknowledges that the aggregate liability arising with respect to this Agreement and the company’s App will not exceed the total amounts that is payable by the Company to you under this Agreement and pursuant to the event giving rise to the claim. 

13. Title, Ownership and Risk

13.1 The Company retains title and ownership of the Device and Company’s App. Neither this Agreement nor the use of the Company’s App or Device convey or grant to you any rights in relation to the Device and Company’s App except as set out above.

13.2 The risk of use of the Device passes onto the Car Owner from and including the date of this Agreement.

13.3 If the Device is damaged or destroyed following the date of this Agreement, the Company is entitled to receive all insurance proceeds payable due to its damage or destruction.

13.4 Receipt by the Company of the Deposit Fee or any other form of payment shall not be deemed to be payment for the right to transfer title or ownership of the Company’s App or Device to the Car Owner. 

14. Termination

14.1 Each party may terminate this Agreement at any time with four (4) weeks’ notice, with or without cause, by providing written notice to the other party.

14.2 The Company may terminate this Agreement with two (2) weeks written notice if:

(a) you fail to mount and display the Device in compliance with the requirements of this Agreement;

(b) you fail to keep the Company’s App running and operational during your shift with each transportation network company to the satisfaction of the Company (acting reasonably); 

(c) you fail to rectify a breach of this Agreement within a reasonable time of being requested to do so by the Company; or

(d) you breach your warranties under Clause 10.

14.3 Upon termination, all rights and obligations of each party will end, except for

(a) return of the Device to the Company to a location nominated by the Company, from where you installed the Device; and

(b) any outstanding payment due from the Car Owner to the Company, which will survive termination.

14.4 Within fourteen (14) days from termination, if the Car Owner fails to or is unable to return the Device to the Company, the Company shall be entitled to deduct $169+GST from the Car Owner who has not paid the deposit. The Company will not refund the deposit for the Car Owners who have paid deposit.

14.5 The termination of this Agreement does not release either party from any liability or right of action they may have by the expiry or termination of this Agreement has already accrued in respect to any breach of this Agreement or its terms.

15. Confidentiality

15.1 During the term of this Agreement, you agree that:

(a) each party’s Confidential Information will remain the property of that party;

(b) you will not use the Company’s Confidential Information other than as reasonably necessary in accordance with this Agreement; and

(c) you must maintain and ensure that your officers, employees, contractors and consultants maintain strict confidentiality and will not disclose Confidential Information to any individual, company, or other third party.

15.2 You may not issue any press release or make any public statement related to the Company’s App and/or Display Ads, or use our name, trademarks or logo in any way (including in promotional material) without our prior written consent or misrepresent or embellish the relationship between us in any way.

16. Miscellaneous

16.1 All currencies are in Australian Dollars (AUD).

16.2 The Company’s App, including all software, functions, materials and information made available to you and in connection with the Display Ads is provided “as-is”. You acknowledge that you may use the Company’s App at your own risk.

16.3 This Agreement contains all the terms and conditions between the parties and the Company has made no warranty (oral or otherwise) except as expressly stated herein.

16.4 Nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative or employment relationship between the parties.

16.5 You may not assign this Agreement, by operation of law or otherwise, without the prior written consent of the Company.

16.6 If any clause or part of a clause of this Agreement is  held as invalid, illegal, unlawful or otherwise being incapable of enforcement, that clause or part of a clause will be read down to give it efficacy and, where this is not possible, will be deemed to be severed from this Agreement and be of no force and effect however all other clauses and parts of clauses of this Agreement will continue to prevail and remain in full force and effect and be valid and fully enforceable.

16.7 You do not have any exclusive rights with the Company.

17. Jurisdiction

This Agreement is governed by the laws of New South Wales. Each party irrevocably submits to the non-exclusive jurisdiction of the courts of New South Wales.

18. Notice

18.1 A notice or other communication required or permitted to be given by one party to another must be in writing and:

(a) delivered personally; or

(b) sent by pre-paid mail to the address of the addressee specified in this Agreement.

18.2 A notice or other communication is taken to have been given (unless otherwise proved):

(a) if mailed, on the third business day after posting;

18.3 A party may change its address for service by giving notice of that change in writing to the other parties.