SERVICE LEVEL AGREEMENT FLEET OWNERS FLEET DRIVERS AND DRIVER PARTNER
ETAPATH PROPRIETARY LIMITED a private company registered in the Republic of South Africa with registration number: 2019/497591/07 and office address at 64 7th Avenue, Parktown North, Johannesburg, 2193.
FLEET PARTNER an individual or sole proprietorship or independent company or any other corporate entity in the business of providing transportation services through drivers who are contracted by the fleet partner.
FLEET DRIVER an individual who passes the onboarding requirements of Etapath and who is authorised by Etapath to access the Etapath Services in order to provide transportation services to Users by use of a Fleet Partner vehicle.
DRIVER PARTNER an individual who passes the onboarding requirements of Etapath and who is authorised by Etapath to access the Etapath Services in order to provide transportation services to Users.
THIS DOCMENT CONTAINS PARTS A, B AND C TO BE READ TOGETHER AS SPECIFIED IN THE DOCUMENT
1.1 Etapath provides the Etapath Services for the purpose of rendering Transportation Services to the Clients.
1.2 The Etapath Services enable the Customers to receive and fulfil Grouped Trips requested by the Clients from time to time.
1.3 The Customer’s wish to make use of the Etapath Services and receive Grouped Trips in order enhance its, his or her business.
1.4 The Parties wish to enter into this Agreement to record and regulate their business relationship.
1.5 By entering into this Agreement, the Customer’s acknowledge and agree that Etapath is a technology services provider that does not provide transportation services, function as a transportation carrier, nor operate as an agent for the transportation of passengers.
2 SUSPENSIVE CONDITIONS
2.1 The Customer’s must fulfil Etapath’s onboarding requirements, specifically:
2.1.1 The Fleet Owner must fulfil Etapath’s vehicle onboarding requirements and ensure its Fleet Drivers fulfil Etapath’s driver on boarding requirements; and
2.1.2 The Driver Partner must fulfil Etapath’s vehicle and driver on boarding requirements.
2.2 The execution (and any subsequent revisions, updates, amendments or addendums to this Agreement) of this Agreement may be done:
2.2.1 electronically by the Customer’s clicking "I accept" when creating its, his or her applicable profiles, the Customer’s shall be bound by the terms and conditions contained herein; or
2.2.2 in written form by the Customers, the Customer’s shall be bound by the terms and conditions contained herein.
2.3 Upon the Customer's acceptance (electronic or otherwise) of this Agreement the Customer’s warrant and represent that it has: (1) read and understood the terms of this Agreement and (2) if necessary, sought independent legal advice in relation to its terms.
The general terms and conditions are to be read with Part B and Part C.
In this Agreement, unless the context indicates otherwise, the words and expressions set out below shall have the meanings assigned to them and cognate words and expressions shall have a corresponding meaning, namely:
means an 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 fifty percent (50%) of the voting stock or other ownership interest, the majority of the voting rights of such entity, the ability of such entity to ensure that the 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;
means this service level agreement and any schedules attached hereto;
1.2 Business Day
means any day which is not a Saturday, Sunday or official public holiday in the Republic of South Africa;
means individuals or corporate entities that Etapath service from time to time;
1.4 Confidential Information
means all present and future confidential information including but not limited to specifications, data, trade secrets, models, reports, analyses, know-how, drawings, formulations, expertise and intellectual property pertaining to the business affairs or operations of the Parties or any part thereof, but shall exclude:
1.4.1 information known to either Party prior to the date that it was received from the other Party; or
1.4.2 information known to the public or generally available to the public prior to the date that it was disclosed by either Party to the other Party; or
1.4.3 information which becomes known to the public or becomes generally available to the public subsequent to the date that it was disclosed by either Party to the other Party, through no act or failure to act on the part of the recipient of such information; or
1.4.4 information which either Party, in writing, authorises the other Party to disclose.
means a lump sum amount determined by Etapath paid by the Customers to Etapath to be held and/or reimbursed and/or set off and/or forfeited;
means a mobile device owned or controlled by the Customer which meets the specifications to run the Etapath Services and which the Driver Profile is installed or authorised by Etapath;
1.7 Driver Profile
means the Etapath driver web or mobile application providing transport providers with access to the Etapath Services with the ability to receive or be assigned Grouped Trips in order to provide transportation to Users which may be updated or modified by Etapath at its discretion from time to time;
1.8 Etapath Data
means all data related to the access and use of the Etapath Services hereunder, including all data related to Users (including User Information), all data related to the provision of Transportation Services via the Etapath Services and the Driver Profile;
1.9 Etapath Profiles
means Etapath’s various web and mobile application profiles that the Customers have access to including the driver profile and fleet manager profile and any other profile that the Customers have access to;
1.10 Etapath Services
means Etapath’s electronic application service rendered via a digital technology platform, enabling transportation providers to seek, receive, be assigned and fulfil transportation requests by Users and includes access to the Driver Profile and Etapath’s related software and website and related support services which may be updated or modified by Etapath at its discretion from time to time;
means the amount in Rands charged for each completed Grouped Trip rendered by the Customer in terms of the Transportation Services;
1.12 Grouped Trips
means a number of bookings grouped together into one trip by Etapath showing the pick-up point, the drop-off point, distance, route and other specified details;
means Etapath, the Fleet Owner, the Fleet Driver and the Driver Partner, and "Party" shall mean either one of them as the context may indicate;
1.14 Performance Standard
means certain criteria established by the Etapath from time to time as contained in the Driver Code of Conduct and Driver Guideline to Safety and Health Practices;
1.15 Service Fee
means the fees charged by Etapath for each Grouped Trip in respect of the Transport Services rendered by the Customer;
1.16 Signature Date
means the date of signature of this Agreement by the Party last in time to do so;
means the Republic of South Africa wherein the Transportation Services will be provided;
means any applicable road, bridge, ferry, tunnel and airport charges and fees, including inner-city congestion, environmental or similar charges as reasonably determined by the Etapath Services based on available information;
1.19 Transportation Services
means the provision of transportation to the Client of the Client’s Users via the Etapath Services as determined by the Client within the Territory by the Customers and other service providers as determined by Etapath using the Vehicles;
means the end user associated to Etapath’s Clients and authorised by Etapath to use Etapath's web and mobile application for the purpose of obtaining Transportation Services offered by Etapath's transportation providers;
1.21 User Information
means information about a User made available to the Customer in connection with such User's request for and use of Transportation Services, which may include the User's name, pick-up location, contact information and photo; and
2 PROPRIETARY RIGHTS AND LICENSE
2.1 License Grant
Subject to the terms and conditions of this Agreement, Etapath hereby grants the Customers a non-exclusive, royalty-free, non-transferable, non-sublicensable, non-assignable license, during the term of this Agreement, to use (and allow the Fleet Drivers to use, where applicable) the Etapath Profiles in connection with the provision by Etapath of the Etapath Services solely for the purpose of providing Transportation Services to Users and tracking the resulting Fares and fees. All rights not expressly granted to the Customers are reserved by Etapath, its Affiliates and their respective licensors.
The Customers 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 Etapath Services or the Etapath Profiles in any way; (b) modify or make derivative works based upon the Etapath Services or Etapath Profiles; (c) improperly use the Etapath Services or Etapath Profiles, including creating Internet "links" to any part of the Etapath Services or Etapath Profiles, "framing" or "mirroring" any part of the Etapath Services or Etapath Profiles on any other websites or systems, or "scraping" or otherwise improperly obtaining data from the Etapath Services or Etapath Profiles; (d) reverse engineer, decompile, modify, or disassemble the Etapath Services or Etapath Profiles, except as allowed under applicable law; or (e) send spam or otherwise duplicative or unsolicited messages. In addition, the Customers shall not allow any other party to, access or use the Etapath Services or Etapath Profiles 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 Etapath Services an automated program or script, including web spiders, crawlers, robots, indexers, bots, viruses or worms, or any program which may make multiple server requests per second, or unduly burden or hinder the operation and/or Performance Standard of the Etapath Services; or (iv) attempt to gain unauthorised access to the Etapath Services or its related systems or networks, all except to the extent such actions must be allowed under South Africa law.
The Etapath Services, Etapath Profiles and Etapath Data, including all intellectual property rights therein, shall remain the property of Etapath, its Affiliates or their respective licensors. Neither this Agreement nor the Customers’ use of the Etapath Services, Etapath Profiles or Etapath Data conveys or grants to the Customers any rights: (a) in or related to the Etapath Services, Etapath Profiles or Etapath Data, except for the limited license granted above; or (b) to use or reference in any manner Etapath’s, its Affiliates', or their respective licensors' company names, logos, product and service names, trademarks, service marks or other indicia of ownership. Additionally, the Customers acknowledge Etapath’s rights in its trademarks and names, including ETAPATH, alone and in combination with other letters, punctuation, words, symbols and/or designs, the ETAPATH Logo. The Customers agree it will not, and where applicable it will ensure that its Fleet Drivers do not, try to register or otherwise claim ownership in any of the Etapath Marks and Names, alone or in combination with other letters, punctuation, words, symbols and/or designs, or in any confusingly similar mark or name.
3.1 Each Party acknowledges and agrees that in the Performance Standard of this Agreement it may have access to or may be exposed to, directly or indirectly, Confidential Information of the other Party.
3.2 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.
3.3 The Parties shall take all steps necessary to prevent the disclosure of Confidential Information, except as may be required to enable a Party to implement the terms of this Agreement, or as may be required by law.
3.4 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.
4.1 Subject to all applicable laws, Etapath may provide to a third party any information (including personal data and any Etapath Data) about the Customers provided hereunder if:
4.1.1 there is a complaint, dispute or conflict, including an accident, between a the Customers and a User;
4.1.2 it is necessary to enforce the terms of the Agreement;
4.1.3 it is required, in Etapaths’ or any Affiliate's sole discretion, by applicable law or regulation;
4.1.4 it is necessary, in Etapaths’ or any Affiliate's sole discretion, to (1) protect the safety, rights, property or security of Etapath, the Etapath Services or any third party, (2) detect, prevent or otherwise address fraud, security or technical issues, and/or (3) prevent or stop activity which Etapath or any of its Affiliates, in their sole discretion, consider to be, or to pose a risk of being, illegal, unethical or legally actionable; or
4.1.5 it is required or necessary, in Etapaths’ or any Affiliate's sole discretion, for insurance or other purposes related to the Customer's ability to qualify, or remain qualified, to use the Etapath Services.
5 REPRESENTATIONS, WARRANTIES AND DISCLAIMERS
5.1 By Fleet Owner
The Fleet Owner 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 organised, 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 authorisations necessary to provide (i) Transportation Services using the Fleet Driver and Vehicles pursuant to this Agreement, and (ii) passenger transportation services to third parties in the Territory generally; and (e) it shall require all Fleet Driver to comply with the Service Level Agreement for Driver Partners, the applicable terms and conditions set forth in this Agreement and all applicable laws.
5.2 By Driver Partner and Fleet Drivers
The Driver Partner and Fleet Drivers hereby represent and warrant that: (a) he/she has full power and authority to enter into this Agreement and perform its obligations hereunder; (b) he/she has not entered into, and during the term will not enter into, any agreement that would prevent it from complying with this Agreement; (c) he/she will comply with all applicable laws in his/her 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 Vehicles pursuant to this Agreement, and (ii) passenger transportation services to third parties in the Territory generally; and (d) he/she shall comply with the applicable terms and conditions set forth in this Agreement, the General Terms and all applicable laws.
5.3 Disclaimer of Warranties
Etapath provides, and the Customers accept, the Etapath Services and the Etapath Profiles on an "as is" and "as available" basis. Etapath does not represent, warrant or guarantee Customers’ access to or use of the Etapath Services or the Etapath Profiles:
(a) will be uninterrupted or error free; or
(b) will result in any assignment of Grouped Trips; or
(c) that the shortest or most efficient route for each User is provided to the Customer.
Etapath’s functions are limited to what is contained in this Agreement and makes no representations, warranties or guarantees as to the actions or inactions of the Users who receive Transportation Services. By using the Etapath Services and Etapath Profiles, the Customers acknowledge and agrees that the Customers or (where applicable) the Customers may be introduced to a third party (including Users) that may pose harm or risk to the Customers or other third parties. The Customers are advised to take reasonable precautions with respect to interactions with third parties encountered in connection with the use of the Etapath Services or Etapath Profiles.
5.4 No Service Guarantee
Etapath does not guarantee the availability Grouped Trips in terms of the Etapath Services or Etapath Profiles. The Customers acknowledge and agree that the Etapath Services or Etapath Profiles may be unavailable at any time and for any reason (e.g., due to scheduled maintenance or network failure). Further, the Etapath Services or Etapath Profiles may be subject to limitations, delays, and other problems inherent in the use of the internet and electronic communications, and Etapath is not responsible for any delays, delivery failures or other damages, liabilities or losses resulting from such problems.
6.1 The Customers shall indemnify, defend (at Etapath’s option) and hold harmless Etapath 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, social security contributions and taxes arising out of or related to: (a) the Customers’ breach of its representations, warranties or obligations under this Agreement; or (b) a claim by a third party (including Users, regulators and governmental authorities) directly or indirectly related to the Customers’ provision of Transportation Services or use of the Etapath Services.
6.2 As between the Fleet Owner and Etapath, the Fleet Owner is and shall be solely responsible for its Fleet Drivers provision of Transportation Services. As such, the Fleet Owner shall indemnify, defend (at Etapath’s option) and hold harmless Etapath 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, social security contributions and taxes directly or indirectly arising out of or related to its Fleet Driver provision of Transportation Services or use of the Etapath Services.
6.3 As between the Driver Partners and Etapath, the Driver Partners shall be solely responsible for its provision of Transportation Services. As such, the Driver Partners shall indemnify, defend (at Etapath’s option) and hold harmless Etapath 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, social security contributions and taxes directly or indirectly arising out of its provision of Transportation Services or use of the Etapath Services.
7 LIMITS OF LIABILTY
Etapath and its Affiliates shall not be liable under or related to this Agreement for any of the following, whether based on contract, delict 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) the Customers’ 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 Etapath's obligations to pay amounts due to the Customers, but subject to any limitations or other provisions contained in this Agreement which are applicable thereto, in no event shall the liability of Etapath or its Affiliates under this Agreement exceed the amount of Service Fees actually paid to or due to Etapath hereunder in the six (6) month period immediately preceding the event giving rise to such claim. The Customers acknowledge and agree that any and all claims the Customers have or purport to have against Etapath and/or its Affiliates should be notified to Etapath and/or its Affiliates within one (1) year after the event(s) that gave rise to such claim and that the Customers forfeit all rights in respect of that claim if Customers fails to do so. These limitations do not purport to limit liability that cannot be excluded by applicable law.
8 TERM & TERMINATION
This Agreement shall commence on the date that the Agreement is executed by Customers (electronically or otherwise) and shall continue until terminated as set forth herein.
8.2.1 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.
8.2.2 Etapath may terminate this Agreement or deactivate the Customers or a immediately, without notice, with respect to the Customers in the event that the Customers, as applicable, no longer qualifies, under applicable law or the standards and policies of Etapath, to provide Transportation Services or to operate the Vehicle, or as otherwise set forth in this Agreement.
8.3 Effect of Termination
Upon termination of this Agreement, the Customers, shall immediately delete and fully remove the Driver Profile from any applicable Driver Devices. The following provisions shall survive the termination of this Agreement:
8.3.1 The termination of this Agreement, for whatever reason, shall not affect the rights of the Parties:
22.214.171.124 that may have accrued before the termination of this Agreement; or
126.96.36.199 which specifically or by their nature survive the termination of this Agreement.
This Agreement shall be governed by and interpreted under the laws of the Republic of South Africa.
The Parties hereby consent and submit to the jurisdiction of the High Court of South Africa, Gauteng Local Division, Johannesburg in connection with any dispute arising from or in connection with this Agreement where the Parties seek urgent or interim relief.
Any notice delivered by Etapath to the Customers under this Agreement will be delivered by email to the email address associated with the Customer's Etapath account or by posting on the online portal available to the Customers on the Etapath Services. Any notice delivered by the Customers to Etapath under this Agreement will be delivered by contacting Etapath at https://www.etapath.com/.
12.1 This document contains the entire agreement between the Parties as to the subject matter hereof.
12.2 Neither Party shall have any claim or right of action arising from any undertaking, representation or warranty not included in this document.
12.3 Etapath reserves the right to modify the terms and conditions of this Agreement, including Part A, B and C, effective upon publishing an updated version of this Agreement or the Service Level Agreement for Driver Partners or the Service Level Agreement for Fleet Owners, as applicable, on the online portal available to the Customers on the Etapath Services. Etapath reserves the right to modify any information referenced at hyperlinks from this Agreement from time to time. The Customers hereby acknowledge and agree that, by using the Etapath Services, or downloading, installing or using the Etapath Profiles, the Customers are bound by any future amendments and additions to this Agreement, information referenced at hyperlinks herein, or documents incorporated herein, including with respect to the Fare. Continued use of the Etapath Services or Etapath Profiles after any such changes shall constitute the Customers’ consent to such changes.
12.4 The Fleet Owner acknowledges and agrees that Etapath shall, from time to time, for and on behalf of the Fleet Owner, provide or push the Driver Agreement between the Fleet Owner and the Fleet Driver (and any amendments to such Driver Agreement which reflect any amendments to the provisions set out in this Agreement or vice versa) for the Fleet Driver’s acceptance and agreement.
12.5 No failure by either Party to enforce any provision of this Agreement shall constitute a waiver of such provision or affect in any way that Party’s right to require performance of any such provision at any time in the future, nor shall the waiver of any subsequent breach nullify the effectiveness of the provision itself.
12.6 No indulgence, leniency or extension of a right, which either of the Parties may have in terms of this Agreement, and which either party (“the grantor”) may grant or show to the other party, shall in any way prejudice the grantor, or preclude the grantor from exercising any of the rights that it has derived from this Agreement, or be construed as a waiver by the grantor of that right.
12.7 No agreement to vary, add to or cancel this Agreement shall be of any force or effect unless reduced to writing and signed on behalf of both Parties.
12.8 In the event that any of the terms of this Agreement are found to be invalid, unlawful or unenforceable, such terms will be severable from the remaining terms, which will continue to be valid and enforceable.
12.9 Neither Party may cede any of its rights or delegate any of its obligations under this Agreement without the prior written consent of the other Party.
12.10 This Agreement may be signed in counterparts, in which event the originals together will constitute the entire agreement between the Parties.
13.1 This document contains the entire agreement between the Parties as to the subject matter hereof.
13.2 In this Agreement, unless the context requires otherwise:
13.2.1 words importing any one gender shall include the other two genders;
13.2.2 the singular shall include the plural and vice versa;
13.2.3 a reference to natural persons shall include created entities (corporate or unincorporated) and vice versa.
13.3 In this Agreement, the headings have been inserted for convenience only and shall not be used for nor assist or affect its interpretation.
13.4 If anything in a definition is a substantive provision conferring rights or imposing obligations on anyone, effect shall be given to it as if it were a substantive provision in the body of this Agreement.
Each Party shall bear its own costs in connection with the drafting and negotiation of this Agreement.
PART B: DRIVER AGREEMENT: TERMS AND CONDITIONS APPLICABLE TO ETAPATH DRIVER PARTNERS AND FLEET DRIVERS
3.1 Defined terms used in this Part B shall have the meanings set out in Part A: General Terms and Conditions, Section 1 Definitions.
3.2 For the purposes of Part B Driver Partners and Fleet Driver shall mean “Driver”.
4.1 Drivers identification documents (“ID”).
Once the Driver has met the onboarding requirements, it, he or she will be issued with a unique Driver ID providing access and use of the Etapath Services to provide transportation services to Clients. The Driver is required to maintain the Driver ID in confidence and immediately notify Etapath should anyone other than the Driver be using the Driver’s Driver ID or Driver Profile.
4.2 Provision of Transportation Services.
4.2.1 When a Driver logs into the Driver Profile, it, he or she may be assigned Grouped Trips requesting Transportation Services of Users if the Driver accepts the assignment and is within the vicinity of the Users. The Etapath Services will provide certain User information to the Driver of the Grouped Trip via the Driver Profile, SMS, email or telephone, including the User’s name, telephone number and pickup location.
4.2.2 Etapath requires Drivers to adhear to strict transport guidelines contained in the Driver Guideline to Safety and Health Practices and Driver Code of Conduct.
4.2.3 Personal and insurance information.
188.8.131.52 The Driver acknowledges and agrees that on assignment of Grouped Trips, certain information and/or data of the Driver may be shared with Users including names, contact details, photo and location and vehicle make and registration number. The Driver may not contact Users or use any User’s personal information or data for any other reason than for fulfilling the Transportation Services.
184.108.40.206 Etapath may release the contact and/or insurance information of the Driver to a User upon request.
4.3 The Driver - User relationship.
4.3.1 The Driver acknowledges and agrees that it provides the Transportation Services to the Client and Users on behalf of Etapath and therefore no direct business relationship exists between the Client and Users and Etapath.
4.3.2 The Driver acknowledges and agrees that it is responsible and liable to uphold Etapath’s strict standards of care and service in terms of the Driver Code of Conduct and Driver Guideline to Safety and Health Practices to the Client and Users.
4.3.3 The Driver warrants that:
220.127.116.11 It shall take all precautions, including maintaining adequate insurance that meets the requirements of all applicable laws regarding any acts or omissions of Users or third parties;
18.104.22.168 It shall not transport or allow inside any Vehicle individuals other than Users during the performance of Transportation Services; and
22.214.171.124 Users shall be transported directly to the drop-off locations specified by the Grouped Trip and shall not make any unauthorized stops.
4.4 The Driver - Etapath relationship.
4.4.1 Except as otherwise provided herein the relationship between the Parties under this Agreement is solely that of independent contractors.
4.4.2 The Parties expressly agree that:
126.96.36.199 this Agreement is not an employment agreement, nor does it create an employment relationship (including from a labour law, tax law or social security law perspective), between Etapath and the Driver; and
188.8.131.52 no joint venture, partnership, or agency relationship exists between Etapath and the Driver.
4.4.3 The Driver has no authority to bind Etapath and undertakes not to hold itself out as an employee, agent or authorised representative of Etapath or its Affiliates. Should it be construed by implication of mandatory law or otherwise, that the Driver is deemed to be an employee, agent or representative of Etapath, the Driver undertakes and agrees to indemnify and/or defend Etapath 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.
4.4.4 The Driver intends to perform Transportation Services with all the rights and responsibilities of a legal entity within the Republic of South Africa and therefore is a taxable person in accordance with all applicable VAT and indirect tax legislation.
4.4.5 Etapath does not, nor shall be deemed to, exercises any control over the Driver generally. The Driver acknowledges that Etapath does not control:
184.108.40.206 when or for how long the Driver will utilise the Driver Profile or the Etapath Services; or
220.127.116.11 the Driver’s decision to accept, receive or cancel Grouped Trips subject to the rules and regulations contained in Drivers Code of Conduct and the Driver Guideline to Safety and Health Practices.
The Driver may be deactivated or otherwise restricted from accessing or using the Driver or the Etapath Services in the event of a violation of this Agreement, or violation of the Driver Code of Conduct and the Driver Guideline to Safety and Health Practices or the Drivers disparagement of Etapath or any of its Affiliates, or the Driver’s act or omission that causes harm to Etapath or any of its Affiliates' brand, reputation or business as determined by Etapath in its sole discretion. Etapath also retains the right to deactivate or otherwise restrict the Driver from accessing or using the Driver Profile or the Etapath Services as otherwise set out in this Agreement or for any other reason at the sole and reasonable discretion of Etapath.
4.6 Driver Performance Standard
4.6.1 The Driver agrees that:
18.104.22.168 After providing the Transportation Services and completing a Grouped Trip, the User may provide comments or feedback about such Transportation Services and Grouped Trip; and
22.214.171.124 The Users may be prompted by the Driver Profile to provide comments or feedback on the Transportation Services and Grouped Trip.
4.6.2 The Driver is required to maintain the Performance Standard, as may be updated from time to time by Etapath at its sole discretion. In the event that the Performance Standard is not met, Etapath may provide the Driver with a limited period of time to rectify its performance or deactivate the Driver’s access to the Driver Profile and the Etapath Services.
4.6.3 Etapath and its Affiliates reserve the right to use, share and display any comments or feedback received on the Driver’s Performance Standard without attribution to or approval of the Driver.
4.7.1 Etapath is not responsible for the cost, acquisition or maintenance of the Driver’s device. The Driver agrees to not provide, distribute or share, or enable the provision, distribution or sharing of, the Driver Profile (or any data associated therewith) with any third party. The Driver will delete and fully remove the Driver Profile from the Driver’s Device in the event that the Driver ceases to provide Transportation Services using the Driver’s Device.
4.7.2 The Driver agrees that:
126.96.36.199 The Device requires a data plan in order for the Driver to provide Transportation Services at the Driver’s own expense; and
188.8.131.52 Use of the Driver Profile consumes large amounts of data
Etapath recommends that the Driver acquires a data plan with unlimited or very high data usage limits, and Etapath shall not be responsible or liable for any fees, costs or overage charges associated with any data plan.
4.8 Location based services.
4.8.1 The Driver acknowledges and agrees that his or her geo-location information must be provided to the Etapath Services via a Device in order to provide the Transportation Services.
4.8.2 The Driver acknowledges and agrees that:
184.108.40.206 His or her geo-location information will be monitored and tracked by the Etapath Services once installed or authorised on the Device; and
220.127.116.11 the approximate location of Driver’s Vehicle will be displayed to Etapath and the User before and during the provision of Transportation Services.
18.104.22.168 Etapath may monitor, track and share the Driver’s geo-location information obtained by the Driver Profile and Device for safety, security, technical, marketing and commercial purposes, including to provide and to improve Etapath’s products and services.
5 DRIVERS AND VEHICLES
5.1 Driver Requirements.
5.1.1 The Driver warrants that it holds and shall maintain:
22.214.171.124 a valid Driver license and Provisional Driving Permit (“PDP”) with the appropriate level of certification to operate the Vehicle, and
126.96.36.199 all licenses, permits, approvals and authority necessary to provide passenger transportation services to third parties in the Territory;
188.8.131.52 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
184.108.40.206 high standards of professionalism, service and courtesy.
5.1.2 The Driver agrees that he or she may be subject to certain background and driving record checks from time to time in order to qualify, provide, and remain eligible to provide, Transportation Services. The Driver may be deactivated from or otherwise restricted from accessing or using the Driver Profile or the Etapath Services if the Driver fails to meet the requirements set forth in this Agreement.
5.2 Vehicle Requirements.
5.2.1 The Driver warrants that the Vehicle is (and shall be at all times):
220.127.116.11 properly registered and licensed to operate as a passenger transportation vehicle in the Territory;
18.104.22.168 owned or leased by the Driver or otherwise in Driver’s lawful possession;
22.214.171.124 suitable for performing the passenger transportation services contemplated by this Agreement; and
126.96.36.199 maintained in good operating condition, consistent with industry safety and maintenance standards for a Vehicle of its kind and any additional standards or requirements in the applicable Territory, and in a clean and sanitary condition.
5.3 Documentation requirements.
5.3.1 The Driver must provide Etapath with written copies of all such licenses, permits, approvals, authority, registrations and certifications or any other documents prior to the Driver providing Transportation Services.
5.3.2 Any renewals of such licenses, permits, approvals, authority, registrations and certifications must be made to Etapath in the form of written evidence.
5.3.3 Etapath shall, upon request, be entitled to review such licenses, permits, approvals, authority, registrations and certifications from time to time, and the Driver’s failure to provide or maintain any of the foregoing shall constitute a material breach of this Agreement. Etapath reserves the right to independently verify any of the Driver’s documentation from time to time in any way Etapath deems appropriate in its reasonable discretion.
6 PAYMENT TERMS
6.1 Fare calculation and Driver payment.
6.1.1 Etapath shall charge a fare on behalf of the Driver for each completed Grouped Trip rendered in terms of the Transportation Services provided to the Client. The Fare is based on a tiered, per kilometre or any other charging system calculated according to the distance of the Grouped Trip as determined by Etapath by using final Grouped Trip details or location-based services enabled through the Etapath Application.
6.1.2 Etapath shall on behalf of the Driver charge the Client for any Tolls, taxes or fees incurred during the provision of Transportation Services.
6.1.3 The Driver appoints Etapath as the Driver’s payment collection agent solely for the purpose of accepting the Fare, applicable Tolls and, applicable taxes and fees from the Client on behalf of the Driver and agrees that payment made by the Client to Etapath shall be considered the same as payment made directly by the Client to the Driver.
6.1.4 The Parties agree that the Fare is a recommended amount and the Driver may negotiate a different amount that is less than the prearranged Fare. Etapath shall consider the Driver’s request in good faith.
6.2 Etapath may facilitate an option for the Client in the Territory to pay for a given instance of Transportation Services provided by the Driver by way of Credit Card. For the avoidance of doubt, payment by Credit Card has the same meaning as "Fare". In such instances the Driver shall:
6.2.1 Make use of a credit card machine provided by Etapath;
6.2.2 Take full responsibility for inserting the correct Fare as indicated by the Etapath Application;
6.2.3 Be solely liable for any errors that may cause the Fare not to be charged.
For the avoidance of doubt, no service fee may be charged to Clients by the Driver in respect of amounts constituting Credit Card Payments.
6.3 Miscalculations, errors and inaccuracies.
Etapath shall bear no liability or responsibility for miscalculations, errors or inaccuracies in the calculating or entering the amounts constituting Credit Card Payments into the credit card machine by the Driver. The Driver Partner acknowledges and agrees that any loss or liability incurred as a result of the Driver’s error, miscalculation or inaccuracy in calculating or entering the amounts shall be at the Driver’s own risk and the Driver further agrees that Etapath shall bear no liability for errors, loss or liability which the Driver may incur as a result of such actions.
The Driver acknowledges and agrees that it shall at no time accept any additional payments made by Users. Should a User make an additional payment to the Driver, the Driver shall immediately report the incident and return the additional payment to Etapath.
6.5 Changes to Fare calculation.
Etapath reserves the right to change the Fare at any time in Etapath’s discretion based upon local market factors, and Etapath will provide notice to the Driver in the event of such change that would result in a change in the recommended Fare. Continued use of the Etapath Services after any such change in the Fare shall constitute the Driver’s consent to such change.
6.6 Fare adjustment.
Etapath reserves the right to: (i) adjust the Fare for a particular instance of Transportation Services (e.g. the Driver took an inefficient route, the Driver failed to properly end a particular instance of Transportation Services in the Driver Profile, technical error in the Etapath Services, etc.); or (ii) cancel the Fare for a particular instance of Transportation Services (e.g. a Client is charged for Transportation Services that were not provided, in the event of a Client complaint, fraud, etc.). Etapath’s decision to reduce or cancel the Fare in any such manner shall be exercised in a reasonable manner.
6.7 Service Fee
In consideration of Etapath’s provision of the Etapath Services, the Driver agrees to pay Etapath a service fee on a per Transportation Services transaction basis. Unless regulations applicable to the Driver’s Territory require otherwise, taxes will be calculated and charged on the Fare, and Etapath shall calculate the Service Fee based on the Fare inclusive of such taxes.
6.7.2 Taxes on the Service Fee.
Taxes may be payable on the Service Fee and/or any other fees charged by Etapath. Etapath shall calculate and remit such taxes where required by applicable law or regulation. The Service Fee and/or any other fees charged by Etapath shall be net of withholding tax and any other applicable taxes. Unless regulations in the Driver’s Territory require otherwise, Driver agrees to be responsible for withholding taxes and other applicable taxes in relation to the Service Fee. Where required by applicable law or regulations, Etapath shall calculate and remit any such taxes.
6.7.3 Changes to Service Fee.
Etapath reserves the right to change the Service Fee at any time in Etapath’s discretion based upon local market factors, and Etapath will provide notice to the Driver in the event of such change. Continued use of the Etapath Services after any such change in the Service Fee calculation shall constitute the Driver’s consent to such change.
188.8.131.52 Set off
184.108.40.206 The Driver acknowledges and agrees that at the end of each week, Etapath will calculate and set off:
(a) the total amount received by Etapath constituting payments made by the Client to the Driver;
(b) any amounts owing in terms of the Deposit;
(c) such other amounts which Etapath, at its sole discretion agrees to pay to the Driver;
(d) Service Fees owing; and
(e) such other amounts which the Driver and Etapath have agreed to deduct from the Fare.
Etapath agrees to report to the Driver, all collections (including Fares and Gratuities) performed by Etapath in respect of Transportation Services provided by the Driver.
6.9 Driver negative balance.
Where the Driver payout is negative such that there are insufficient funds from Fares to pay the Driver associated with the Transportation Services provided by the Driver, Etapath shall record the shortfall against the Driver’s Etapath account which shall be carried forward until the Driver has repaid such amounts. Etapath may make collection options available to the Driver (e.g. cash collection kiosks, bank transfer, debit card acceptance, and mobile wallets) in order to facilitate the repayment of any amounts owed to Etapath. The Driver acknowledges and agrees that it shall bear the cost of any fees related to repayment (e.g. fees for overdraft, top-up, currency exchange, cross-border, bank transfer, or any other similar fee, charge, or expense) and any taxes (including withholding taxes, indirect taxes and VAT), grossing up amounts owed to Etapath accordingly so Etapath receives the full amount owed.
6.10 No waiver.
For the avoidance of doubt, Etapath shall not be deemed to have waived its right to any amounts owed for provision of the Etapath Services if: (a) there are insufficient Fares to set off against; (b) the Driver Partner does not repay in a timely manner any amounts owed to Etapath on a weekly basis as required; or (c) Etapath elects to require a minimum amount owed prior to initiating collection efforts or otherwise delays collecting amounts owed by the Driver.
6.11 Suspension of Driver Profile.
Etapath reserves the right to suspend the Driver’s Driver Profile account if the Driver maintains a negative balance for more than 1 (one) week. With each payment statement, Etapath shall report any offsetting and deductions. Etapath reserves the right to apply interest to any funds that remain outstanding for an extended period of time and/or assess a reactivation fee and/or assess any other fee allowed under applicable law in connection with fees that remain due and outstanding to Etapath for the Etapath Services past their due date. Any such interest or fees shall be exclusive of the repayment and settlement of all principal payments owed to Etapath for the Etapath Services.
6.12 Cancellation Charges.
6.12.1 The Driver acknowledges and agrees that Users may elect to cancel requests for Transportation Services that have been accepted by the Driver via the Driver Profile at any time prior to the Driver’s arrival. In the event that a User cancels an accepted request for Transportation Services, Etapath may charge the Users a cancellation fee on behalf of the Driver. If charged, this cancellation fee shall be deemed the Fare for the cancelled Transportation Services for the purpose of remittance to the Driver hereunder ("Cancellation Fee").
6.12.2 The Parties acknowledge that and agree that the Cancellation Fee is a recommended amount, which acts as the default amount. The Driver shall always have the right to: (a) charge a cancellation fee that is less than the Cancellation Fee; or (b) negotiate, at the Driver’s request, a cancellation fee that is lower than the Cancellation Fee.
As part of the Etapath Services, Etapath provides the Driver with a system for the delivery of receipts or a bookings record to Clients for Transportation Services rendered. Upon completion of Transportation Services for Users, the receipt or booking record will be prepared and recorded on the Client’s bookings page or sent to the Client in a format requested by the Client. Receipts or booking records are also provided via email or the online portal available to the Driver on the Etapath Services. Receipts include the breakdown of amounts charged to the Client for Transportation Services and may include specific information about the Driver, including the Driver’s name and photo, as well as a map of the route taken by the Driver. Any corrections to a Client’s receipt for Transportation Services must be submitted to Etapath in writing within three (3) business days after the completion of such Transportation Services. Absent such a notice, Etapath shall not be liable for any mistakes in or corrections to the receipt or for recalculation or disbursement of the Fare.
6.14 No additional amounts.
The Driver acknowledges and agrees that, for the mutual benefit of the Parties, through advertising and marketing, Etapath may seek to attract new Clients to Etapath. The Driver acknowledges and agrees such advertising or marketing does not entitle the Driver to any additional monetary amounts beyond the amounts expressly set forth in this Agreement.
7 Additional undertakings
7.1 The Driver acknowledges and agrees that the Driver shall comply with, and bear sole responsibility for, all of the obligations under tax and social security laws applicable in the Territory to him or her.
7.2 The Parties also acknowledge and agree that at no time, and under no circumstance, shall Etapath be liable for the payment, settlement, and/or obligation to pay and/or settle any tax or social security liabilities owed by the Driver to any authority under applicable laws and regulations.
7.3 The Driver shall provide banking details to Etapath for the purpose of receiving payment for the completed Transportation Services.
The Driver represents and agrees that he or she holds or is otherwise covered by a valid policy of liability insurance (in industry-standard coverage amounts) with respect to the Driver’s operation of the Vehicle(s) under this Agreement.