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of Free Now Ireland Limited, 7-12 Baggot Court, Dublin 2, D02 F891, Ireland, with registration no. 510447 (“FREE NOW”).
SCOPE AND MAIN TERMS
These General Terms and Conditions (this “Agreement”) shall apply to: (i) multi-vehicle-contractors (including registered companies) who/that employ small public service vehicle (“SPSV”) licensed vehicle drivers (“Employed Drivers”) (each a “Multi-Vehicle Operator”); and (ii) individuals who are licensed SPSV drivers and provide transport services on their own behalf as self-employed contractors (each an “Individual Operator”). Each Multi-Vehicle Operator and each Individual Operator is a party to this Agreement with FREE NOW when it is accepted by them or on their behalf.
The term “Transport Operator” (or “you”), when used in this Agreement, shall include both Multi-Vehicle Operators and Individual Operators. The term “Drivers”, when used in this Agreement, shall include both Employed Drivers and Individual Operators.
The term “Transportation Services”, when used in this Agreement, shall include: (i) taxi transportation services required to be provided by licensed SPSV drivers using SPSVs as contemplated by the Taxi Regulation Acts, 2013 to 2016 (“Taxi Services”); and (ii) other services including hackney services, limousine services and other transportation services that may be provided by an SPSV and that may be intermediated by the FREE NOW Platform (as defined below) from time to time, whether through fixed fares or otherwise (“Other Services”). FREE NOW may differentiate between the various types of Transportation Services intermediated by it through different categorisations, such as “Premium”, “Match Services” and other mobility services provided by third parties. FREE NOW may also distinguish between Transportation Services provided to consumers and to business. In each case, different terms or fees may apply in respect of each, as detailed in this Agreement and/or the applicable FREE NOW Schedule of Fees (Procurement Fees), which is made available on the FREE NOW Website and in the Driver Application, as may be updated from time to time (the “Schedule of Fees (Procurement Fees)”).
GENERAL
This Agreement sets out the terms and conditions applying to the provision of Transportation Services by Transport Operators. Together with FREE NOW’s Privacy Notice and any other terms and conditions or policies that FREE NOW may implement from time to time and make available to Transport Operators (including as may be referred to in this Agreement) forms a legal agreement between FREE NOW and each Transport Operator. Please read this Agreement carefully before agreeing to it.
When you first register, access or use the FREE NOW Platform (as defined below), and thereafter each time you log in to use the FREE NOW Platform, you indicate your acceptance of this Agreement and you agree to be legally bound by it. If you do not wish to be bound by this Agreement, then you may not establish an account with us or provide Transportation Services via FREE NOW. If you do not wish to be bound by this Agreement, then indicate that you do not accept this Agreement and cease creating/delete your FREE NOW account. You may access the FREE NOW Platform and provide Transportation Services only in accordance with the terms of this Agreement.
This Agreement shall be available at all times on the FREE NOW Platform.
COMPLIANCE WITH LAW
Transportation Services may only be provided by individuals with a licence to drive an SPSV issued by the National Transport Authority (“NTA”) in accordance with Applicable Laws (as defined below). Such licence must be valid and current at all times during which the Driver provides Transportation Services in accordance with this Agreement. Further, in accordance with the Taxi Regulation Act 2013, a Driver shall only provide Transportation Services using an SPSV that is: (i) licensed by the NTA as a taxi, hackney or limousine, as applicable, to operate in the place in which the Transportation Services are provided and to carry Passengers; and (ii) owned by the Driver or owned by a Multi-Vehicle Operator and rented by the Driver in accordance with Applicable Laws. Where a Multi-Vehicle Operator is required to hold a licence to act as a dispatch operator under Applicable Laws, it must do so.
You shall be bound at all times during the course of this Agreement by the regulations applicable to you as a Transport Operator, including (without limitation) the Taxi Regulation Acts 2013 and 2016, as amended from time to time, and all regulations made thereunder, including the Taxi Regulation (Small Public Service Vehicle) Regulations 2015, and any other applicable local taxi transportation laws, regulations and guidances relating to transportation by taxi, hackney or limousine (together, the “Applicable Laws”). You (and your Employed Drivers, if applicable) may only provide Transportation Services where permitted to do so under, and in accordance with, Applicable Laws.
FREE NOW’S SERVICES
This Agreement shall govern the use by you of the FREE NOW Driver application (the “Driver Application”), the FREE NOW website https://free-now.com/ie/ (the “Website”) and any other online intermediation services provided by the FREE NOW technology platform in order to allow Transport Operators to provide Transportation Services, including the service allowing for payment by Passengers through the software application (“Pay by App”) (together, the “FREE NOW Platform”).
Drivers shall also be required to agree to and comply with the General Terms of Use for the FREE NOW Driver Application upon first registration or use of the Driver Application and thereafter each time the Driver logs into the Driver Application.
Specific provisions applicable to you as a Transport Operator using the FREE NOW Platform are set out below.
SPECIFIC TERMS
1. The FREE NOW Platform
1.1 FREE NOW’s Driver Application, and other elements of the FREE NOW Platform, allows Drivers to be connected with potential Passengers (each a “Passenger”). The Transportation Services that can be intermediated by the FREE NOW Platform have been set out under ‘Scope and Main Terms’ above, but these may be expanded, limited or otherwise amended by FREE NOW from time to time.
1.2 The Driver (on behalf of the Transport Operator, where applicable) may be notified of either a request for immediate Transportation Services or a request to pre-book same (“Pre-Booking”) from a Passenger via the FREE NOW Platform. (a “Request”). By accepting the Request on the FREE NOW Platform, the Transport Operator (and, if applicable, its Employed Driver) shall be bound to fulfil the Request as requested by the Passenger.
1.3 The FREE NOW Platform provides intermediation services only, i.e. services facilitating Transportation Services being procured by Passengers and provided by Drivers. Notwithstanding the use of the FREE NOW Platform, any agreement to provide Transportation Services constitutes a separate agreement between the Transport Operator and the Passenger. FREE NOW is not a party (directly or indirectly) to such agreements and the making available of the FREE NOW Platform shall not give rise to any obligation on FREE NOW in relation to such agreement and/or the provision of the Transportation Services. The Transport Operator is free to accept or not accept any and all Requests. FREE NOW cannot guarantee that Passengers, or any particular Passenger, will be available when the Transport Operator uses the FREE NOW Platform and/or the Driver uses the Driver Application. FREE NOW shall not be liable to Transport Operators in respect of any claims arising out of or in connection with Transportation Services provided and facilitated through the FREE NOW Platform or in respect of third parties, including (but not limited to) Passengers or potential Passengers.
1.4 FREE NOW shall provide Drivers with the Driver Application for web-enabled mobile end devices, in accordance with the General Terms of Use for the Driver Application.
1.5 FREE NOW does not provide any Transportation Services, either itself or through any other individuals or entities controlled by it. Use of the FREE NOW Platform shall not prevent a Transport Operator offering Transportation Services through any other means, including through another intermediation service or on its own behalf.
1.6 Transport Operators that provide dispatch services or otherwise provide intermediation services similar to those made available by FREE NOW via the FREE NOW Platform, whether to the public generally or to specific categories of the public or to businesses (collectively “Alternative Services”) shall not be entitled to use the FREE NOW Platform as part of the Alternative Services made available by them, whether as a means of addressing capacity issues experienced by such Alternative Services or otherwise. If FREE NOW suspects that a Transport Operator is using the FREE NOW Platform in breach of this Section 1.6, it shall be entitled to restrict, suspend or exclude from the use of the FREE NOW Platform, whether temporarily or permanently or in whole or in part, that Transport Operator in accordance with Sections 8.1 and 8.2 below.
2. Availability, change and interruption of services
2.1 FREE NOW reserves the right at all times to modify the Driver Application, the Website or any other element of the FREE NOW Platform, including, without limitation, to enhance or to optimise the FREE NOW Platform and its online intermediation services, or to perform other qualitative improvements to it.
2.2 FREE NOW further reserves the right to suspend any element of the FREE NOW Platform, including the Driver Application, without prior notice to the Transport Operator and/or Drivers where necessary for the purposes described at Section 2.1 above. FREE NOW will use all reasonable endeavours to inform Transport Operators and Drivers before suspending the FREE NOW Platform or any element thereof. FREE NOW will use all reasonable endeavours to achieve the highest level of availability possible and eliminate outages as soon as possible, however FREE NOW cannot and does not guarantee the availability of the FREE NOW Platform.
3. Access to the FREE NOW Platform
3.1 Registration as a Transport Operator on the FREE NOW Platform is free of charge. In order to sign up to and use the FREE NOW Platform, a Transport Operator must register an account (“Operator Account”) and furnish complete and accurate information as requested during the registration process, including the SPSV(s) to be used to provide Transportation Services via the FREE NOW Platform. A Multi-Vehicle Operator shall submit the information relating to its Employed Drivers that are to use the Driver Application on the Transport Operator’s behalf and in doing so confirms: (i) it has obtained those Drivers’ permissions to do so; and (ii) it has a valid legal basis for sharing personal data (as defined in the GDPR, itself defined in Section 11.1 below) of its Employed Drivers with FREE NOW. Upon registering, a Transport Operator authorises its Employed Drivers to make use of the FREE NOW Platform for its account in accordance with this Agreement.
3.2 In order to use the Driver Application, a Driver must also open and maintain a personal Driver account by accepting and agreeing to comply with the General Terms of Use of the Driver Application. In the case of a Multi-Vehicle Operator, its Multi-Vehicle Operator account and Employed Driver account(s) shall be linked.
3.3. The Transport Operator acknowledges and accepts the risks which result from the Internet being a public network. FREE NOW shall not be liable for the quality of the Internet service, or for damages resulting from its misuse, including any forms of illegitimate access, malicious actions or cyber attacks.
3.4 The FREE NOW Platform operates by connecting Passengers seeking Transportation Services with Drivers. When a Passenger makes a Request, that Request is notified to Drivers via the Driver Application matching the service type and Passenger preferences requested near the location of the Passenger. As well as proximity to the Passenger, the main parameters taken into account by FREE NOW in determining when a Driver receives notification of a Request are: the status of a Driver as a “FREE NOW Ambassador”, being FREE NOW’s Driver loyalty and reward programme (information on this programme is available here); and ratings of the Driver as provided by previous Passengers. The reasons for the importance of these parameters over others in determining when a Driver receives notification of a Request include ensuring Passengers receive a timely service, as well as rewarding Drivers who provide high quality services. A Request may be accepted by a Driver so notified of a Request by pressing the “ACCEPT” button.
3.5 In the case of a Pre-Booking Request, the Pre-Booking Request is notified to Drivers through the Driver Application. “FREE NOW Ambassadors” and Drivers having obtained loyalty status shall also receive priority access to Pre-Booking Requests. Any Driver so notified shall be free to accept the Request, and the Request shall be accepted by the first Driver to press the “ACCEPT” button.
3.6 The Transport Operator (or in the case of a Multi-Vehicle Operator, an Employed Driver on behalf of that Multi-Vehicle Operator) agrees with a specific Passenger via the FREE NOW Platform to provide requested Transportation Services to that Passenger when the "ACCEPT" button is pressed by the Driver in respect of a specific Request. Subject to Section 5 below, the agreement underlying the completion of that Request, including settlement of amounts due to the Transport Operator, exists as between the Transport Operator and the Passenger, and shall be construed in accordance with principles of the law of contract and other general legal principles and relevant laws (including any taxes, charges or other fees applied to Transportation Services by regulatory authorities).
4. Representations, Warranties and Obligations of the Transport Operator
4.1 When providing Transportation Services through the FREE NOW Platform and at all times during the term of this Agreement, the Transport Operator represents, warrants, and agrees that: (i) all requirements of Applicable Laws (including the holding of SPSV licenses and SPSV vehicle licences) applicable to the Transport Operator and (if relevant) its Employed Drivers and necessary for the Transportation Services that it is to provide through the FREE NOW Platform (the “Relevant Transportation Services”) are met and shall continue to be met for the duration of this Agreement; (ii) it possesses (or in the case of a Multi-Vehicle Operator, each of its Employed Drivers possesses) valid driver’s licences for the operation of the relevant SPSV and accepted and recognised in Ireland; (iii) it is (or its Employed Drivers are) authorised and medically fit to operate the relevant SPSV and comply with all the licences, authorisations and approvals valid and necessary for the execution of the Relevant Transportation Services; (iv) it possesses (and, where relevant, its Employed Drivers possess) the necessary and up-to-date level of training and knowledge for the provision of the Relevant Transportation Services; (v) it has (or its Employed Drivers have) the legal right to operate the SPSV(s) used when providing the Relevant Transportation Services and such SPSV(s) is/are in good operating condition and meet(s) the industry safety standards and the requirements of Applicable Laws and other applicable safety and road traffic regulations, including, but not limited to the Road Traffic Acts 1961 to 2018 (“Road Safety Laws”); and (vi) it possesses all the insurances required by Applicable Laws and Road Safety Laws, in coverage amounts consistent with Applicable Laws and Road Safety Laws. The Transport Operator shall inform FREE NOW without undue delay of any changes that limit, terminate or otherwise affect its right or ability to provide the Relevant Transportation Services.
4.2 The Transport Operator is fully responsible for acquiring and/or hiring the SPSV(s) that will be registered on the FREE NOW Platform for the provision of the Transportation Services.
4.3 The Transport Operator is liable for and must ensure that accepted Requests will be exclusively fulfilled by itself/its Employed Drivers and that the Driver Application will exclusively be used by itself/its Employed Drivers registered on the FREE NOW Platform. The Transport Operator shall inform FREE NOW promptly if the contractual relationship with an Employed Driver registered with FREE NOW under the Transport Operator’s name has been terminated.
4.4 Both FREE NOW and the Transport Operator acknowledges and agrees that the Transport Operator is not, and (if applicable) the Employed Drivers are not, and none will become, an employee or agent of FREE NOW during the term of this Agreement, and shall not be entitled to any fee, salary, pension, bonus, or other fringe benefits from FREE NOW. In the case of an Individual Operator, it shall remain liable and responsible for all tax liabilities (other than value added tax) in respect of any payments to it under this Agreement and the Individual Contractor hereby agrees to indemnify and keep indemnified FREE NOW on demand against any claims or demands that may be made by the relevant authorities in respect of such tax liabilities. In the case of a Multi-Vehicle Operator, such Multi-Vehicle Operator shall be and remain liable and responsible for all income tax, PRSI and other employment-related obligations in respect of its Employed Drivers, and hereby agrees to indemnify and keep indemnified FREE NOW on demand against any claims or demands that may be made by the relevant authorities in respect of such employment-related liabilities.
4.5 This Agreement shall not constitute or create a partnership between FREE NOW and the Transport Operator or between either FREE NOW/the Transport Operator and any other person with whom FREE NOW may enter into a contract for services or of service. Nothing in this Agreement shall create, or be deemed to create, a joint venture, or the relationship of principal and agent, between FREE NOW and the Transport Operator.
4.6 The Transport Operator shall further ensure (and in the case of Multi-Vehicle Operators, shall procure that its Employed Drivers ensure) that the mobile device required for using the Driver Application will be safely mounted in the SPSV while rendering the Transportation Services, in compliance with all Road Safety Laws.
4.7 If the Transport Operator commits, or its Employed Drivers commit, any breach of Applicable Laws or Road Safety Laws, is shall indemnify and keep indemnified FREE NOW on demand from and against any and all liabilities, claims, demands, costs, expenses, obligations, damages, judgments, proceedings, actions and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses, including interest, penalties and reasonable legal fees) (“Losses”) suffered or incurred by FREE NOW in respect of any liability arising out of or in connection with the Transport Operator’s, or its Employed Driver’s, breach of Sections 4.1 to 4.3 and 4.6.
4.8 The Transport Operator shall fully indemnify and keep indemnified FREE NOW from and against any and all Losses, arising out of or in connection with the Transport Operator or an Employed Driver cancelling or not completing a Request or not carrying out a Request in a timely manner after the request by a Passenger had been accepted by the Transport Operator.
5. Processing of payments and Pay by App
5.1 The payment methods available on the FREE NOW Platform may vary depending on the Transportation Service provided to the Passenger. Consequently, the Transport Operator shall be required to accept Pay by App for the provision of Other Services or other fixed fare services (including any fixed fare Taxi Services) and may further be required to accept Pay by App for Taxi Services during specific times in accordance with Section 5.6 below. Use of the Pay by App service by Passengers is regulated by FREE NOW’s terms and conditions for Passengers (“Passenger Terms”). Notwithstanding the foregoing, cash payment shall be accepted by the Transport Operator for the purpose of settling a completed Request, unless the Driver in question is prevented from accepting cash payment in accordance with the terms of Section 5.5 or Section 5.6 below.
5.2 Upon completion of a Request to be settled via Pay by App, the Transport Operator or the Employed Driver acting on its behalf, as the case may be, may be asked to obtain confirmation that the Passenger is authorised to pay via Pay by App by having the Passenger use the generally applicable authorisation method through the Passenger application and thereby agreeing to the amount and the method of payment. The Transport Operator hereby authorises FREE NOW and its third-party partners to invoice the price payable for a completed Request using Pay by App, including the amount of VAT (if applicable), on behalf of the Transport Operator. Notwithstanding the foregoing, a Driver shall be obliged to provide a Passenger with a copy of a receipt in respect of amounts paid to the Driver, via the FREE NOW Platform, by the Passenger if requested by the Passenger.
5.3 The Transport Operator hereby assigns, and agrees to assign on an ongoing basis, to FREE NOW all claims for amounts due to it arising from completed Requests and being discharged by the Passenger via Pay by App pursuant to Section 5.1 (“Assigned Claims”). FREE NOW hereby agrees to accept the Assigned Claims and undertakes to pay an amount equal to each Assigned Claim less FREE NOW’s Intermediation Fee (as defined in Section 6.1 below) and any other amounts that may be due to FREE NOW in accordance with this Agreement (such amount being the “Operator Fee”).
5.4 If an Assigned Claim does not exist or is otherwise not a valid claim for the payment of an amount by the Passenger to the Transport Operator (for example, if the payment method used by the Passenger is rejected by the Passenger’s or FREE NOW’s bank), the Transport Operator shall not receive any Operator Fee that would otherwise be due in accordance with Section 5.3. In the event that the Transport Operator has already received the Operator Fee, the Operator shall be liable to repay such Operator Fee to FREE NOW on request.
5.5 Upon completion of a Request to be settled via cash payment, the Driver shall input the total amount received from the Passenger into the Driver Application (including any tip paid by the Passenger to the Driver, unless such tip is not subject to the Intermediation Fee pursuant to the Schedule of Fees (Procurement Fees)). The Intermediation Fee due to FREE NOW in respect of such completed Requests shall be deducted by FREE NOW from the aggregate Operator Fees due to the Transport Operator in respect of Assigned Claims and payable in accordance with Section 6 below. FREE NOW reserves the right to verify that amounts inputted into the Driver Application by Drivers in respect of cash payments received are accurate, and to sanction any Drivers found to be inaccurately inputting such amounts. Without prejudice to FREE NOW’s other rights under this Agreement, such sanctions may include preventing such Drivers from receiving notification of Requests to be settled by way of cash payment.
5.6 FREE NOW may, from time to time and at its sole discretion, determine that during certain specified times (including, without limitation, times of peak demand for trips) Passengers shall be required to discharge amounts due to the Transport Operator/Driver following completion of a Request and any other fees due from the Passenger, whether to Free Now or to the Transport Operator (including, without limitation, the Technology Fee and any Cancellation Fee), using Pay by App and that the use of cash to discharge amounts due to the Transport Operator/Driver following completion of a Request during those certain specified times shall not be accepted (such periods being “Cash-Free Periods”). Any decision to implement such Cash-Free Periods shall be made on the basis of FREE NOW’s business needs (including the need to maximise the number of Drivers available during times of peak demand) and to ensure greater availability of Drivers and more rapid response times, to the benefit of Passengers. In the event of any decision to introduce Cash-Free Periods, FREE NOW shall notify all Drivers not less than four (4) weeks in advance of the commencement of the application of such Cash-Free Periods, such notification to include the specific hours and/or days during which such Cash-Free Periods shall operate. Drivers shall also be prevented from inputting details of any cash amounts received from the Passenger into the Driver Application in respect of any Requests completed during such Cash-Free Periods.
5.7 During the term of this Agreement, the Transport Operator authorises FREE NOW (or its third-party billing partners) to issue, in its name and on its behalf, invoices for Transportation Services provided by him/her/it to Passengers. It is agreed that, save as aforesaid and as provided at Section 5.2 above, billing and invoicing for Transportation Services provided shall be a matter solely between the Passenger and the Transport Operator in accordance with Applicable Laws. The Transport Operator shall ultimately be responsible for compliance with its invoicing obligations, in particular with regard to the content of invoices provided by the Transport Operator, as well as any relevant VAT obligations. The Transport Operator has a period of fifteen (15) days to object to the content of an invoice issued in its name and on its behalf by FREE NOW. In the absence of objection during this period, it is deemed that the Transport Operator has accepted such invoice.
6. Financial Conditions
6.1 The Transport Operator shall pay to FREE NOW the agreed intermediation fee for Transportation Services provided by it (the “Intermediation Fee”), calculated in accordance with the Schedule of Fees (Procurement Fees). In particular, and for the purposes of settlement of amounts due in respect of Transportation Services provided, the Transport Operator shall, and shall procure, if applicable, that its Employed Drivers shall, report to FREE NOW (by way of the entry of the fare amount into the Driver Application at the end of each trip) the full amounts of the fees charged by the Transport Operator for the Transportation Services provided, in accordance with the Schedule of Fees (Procurement Fees) and including any tip paid by the Passenger to the Driver, unless such tip is not subject to the Intermediation Fee pursuant to the Schedule of Fees (Procurement Fees). FREE NOW may request, at its sole discretion, such evidence as it may consider appropriate that the amount of the fees reported to FREE NOW comply with the Schedule of Fees (Procurement Fees).
6.2 FREE NOW reserves the right in its sole discretion to change the Intermediation Fee and/or to impose additional fees from time to time and at any time and in such event shall update the Schedule of Fees (Procurement Fees) accordingly. Any such changes shall be communicated to the Transport Operator in writing no later than 15 days before they are due to become effective.
6.3. FREE NOW reserves the right in its sole discretion to charge such other fees from time to time and at any time as may be provided for under the Passenger Terms and/or to change such fees. The Transport Operator shall be informed of such changes in writing no later than 15 days before they become effective and FREE NOW shall detail such changes in an updated Schedule of Fees (Procurement Fees).
6.4 On a weekly basis, FREE NOW shall draw up in respect of the Transport Operator: (i) an overview of completed Requests, (ii) a total invoice; and (iii) an account statement (the “Documents”). The Documents shall inform the Transport Operator of the amount of the Operator Fees payable by FREE NOW to the Transport Operator during the previous week (including details of: (x) the aggregate of the Assigned Claims; (y) the aggregate Intermediation Fees payable by the Transport Operator (including Intermediation Fees due in respect of cash payments made to the Transport Operator or its Employed Drivers in accordance with Section 5.5 above)); and (z) any other claims or fees (including any fees set out at Section 6.3 above) due to FREE NOW (such Operator Fees, calculated in accordance with the foregoing, due to the Transport Operator during the relevant week being “Sums Due”). FREE NOW shall send the Documents to the Transport Operator within seven (7) working days.
6.5 In accordance with Section 16.10 below, FREE NOW reserves the right, in accordance and compliance with the provisions of the Fraud Policy (as defined at Section 16.9 below) to withhold any payment that may otherwise constitute Sums Due to a Transport Operator that is deemed to arise out of, or in connection with, any Fraudulent Activities (as defined in the Fraud Policy) of a Transport Operator.
6.6 Subject to Section 6.5, FREE NOW shall pay any Sums Due to the Transport Operator within a period of seven (7) days following the sending of the Documents to the Transport Operator in accordance with Section 6.4 above. FREE NOW shall not be responsible for any delay receipt of any payment due to a Transport Operator under this Section 6.6 arising from the actions or omissions of any third parties.
6.7 The Transport Operator agrees that FREE NOW shall issue an invoice in the name and on behalf of the Transport Operator to itself (self-invoicing) in respect of payments due to the Transport Operator relating to other activities of the Transport Operator or its Employed Drivers and previously agreed in writing with FREE NOW, including the use of advertisements, bonuses and other incentives. The Transport Operator shall be obliged to verify the accuracy of the invoices issued on its behalf (including any VAT (if applicable) on the self-invoices). Objections shall be made as outlined under Section 6.9 below. Any payments due to a Transport Operator under this Section 6.7 shall be made in the manner described in this Section 6.
6.8 Any payments to be made under this Agreement shall be made: (i) in the case of payments to be made by the Transport Operator, by way of SEPA direct debit; and (ii) in the case of payments to be made by FREE NOW, by way of bank transfer to the account designated by the Transport Operator. The Transport Operator hereby authorises FREE NOW to debit any amounts owed by the Transport Operator to FREE NOW from its account by way of SEPA direct debit, and the Transport Operator undertakes to establish the applicable SEPA direct debit authority in favour of FREE NOW. Once the SEPA direct debit order has been completed, it shall be signed by the Transport Operator as the account holder and shall be submitted personally or sent to FREE NOW by email. A standard period of one (1) business day (being a day on which the banks in Ireland are open to the public) shall apply to the SEPA direct debit advance notices. The Transport Operator shall be entitled to revoke the SEPA direct debit order given to FREE NOW at any time, but without retroactive effect and subject to a new direct debit order being established in favour of FREE NOW.
6.9 Objections to the content of any Document shall be made in writing (including email) within four (4) weeks of receipt of the Document. Failure to make any objections within this period shall be deemed as acceptance of the Document, unless the Transport Operator can show reasonable grounds that made it impossible to meet the make the objection within that period.
7. Responsibility and Disclaimers
7.1 The FREE NOW Platform is provided on an “as is” basis and all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by law, hereby excluded. FREE NOW does not represent, warrant or promise any specific results from the use of the FREE NOW Platform or the Driver Application including, without limitation, profits, income, number of trips or Passengers.
7.2 FREE NOW does not represent, warrant or promise that the use of the FREE NOW Platform will always be secure, available, uninterrupted, or free of errors, or that any problems, defects, breakages or network security vulnerabilities in the FREE NOW Platform will be corrected. FREE NOW shall not be liable to the Transport Operator if it ceases to entirely or partially, temporarily or permanently make available the FREE NOW Platform. FREE NOW shall not be liable for any damage caused by errors or omissions, inaccuracy or incompleteness of any information, instructions or scripts provided by or to the Transport Operator/Driver via the FREE NOW Platform.
7.3 The Transport Operator shall be fully responsible for its activities (and, in the case of a Multi-Vehicle Operator, the activities of its Employed Drivers) under this Agreement, including the provision of Transportation Services, and shall indemnify and keep indemnified FREE NOW on demand from and against all Losses arising out of or in connection with such activities, including: (i) its (or its Employed Drivers’) use of the FREE NOW Platform; (ii) any defective performance or breach of its (or its Employed Drivers’) obligations under this Agreement; and/or (iii) any breach by it and/or its Employed Drivers of Applicable Laws or Road Safety Laws. The Transport Operator is exclusively responsible for any obligations or liabilities to Passengers or third parties arising out of or in connection with its provision of Transportation Services. The Transport Operator acknowledges that, by using the FREE NOW Platform, it or its Employed Drivers, if applicable, may come into contact with persons who may be potentially dangerous, and that it uses (and, if applicable, its Employed Drivers use), the FREE NOW Platform and the Driver Application on its own behalf and at its/their own risk and that it (and each Employed Driver, if applicable) is responsible for taking all reasonable and adequate safety precautions. To the greatest extent permitted by law, FREE NOW shall not be liable for any Losses arising to the Transport Operator arising out of or in connection any Transportation Service provided by the Transport Operator.
7.4 FREE NOW is required, in accordance with this Agreement, to perform specific intermediation services and may only be held responsible for faults that can be attributed to it and are proven by the Transport Operator, and for direct and foreseeable damages that are the result of said faults. The following constitute indirect damage and, as such, FREE NOW excludes liability for same: (i) any action taken against a Passenger, Transport Operator or Employed Driver by a third party; (ii) the actions or inactions of any Passengers; (iii) the actions or inactions of any Transport Operator or Employed Drivers; (iv) any actual or anticipated economic loss (including loss of revenues, profits, contracts, data, business, business opportunity or anticipated savings); (v) any special or consequential losses; (vi) losses and/or damage not caused by its breach; (vii) any loss caused by an interruption of activity; (viii) any loss of clientele, goodwill or reputation or damage to or corruption of data; (ix) failure to provide any services or to meet any of its obligations under this Agreement where such failure is due to events beyond FREE NOW's control (for example a network failure); or (x) any indirect or consequential loss howsoever caused (including, for the avoidance of doubt, whether such loss or damage is of a type specified in sub-sections (i) to (ix) above).
7.5 FREE NOW shall be responsible for the materials, information and contents, in whatever form, that it creates, provides and/or requires the Transport Operator to use, except for: (i) any materials, data and information provided by the Passengers, the Transport Operator or other third parties, including their accuracy, integrity and timely receipt; and/or (ii) loss of data by the Transport Operator, any Employed Driver or Passengers.
7.6 Subject to Section 7.11, FREE NOW does not accept, and excludes to the greatest extent permitted by law, all liability for breach of any obligation or duty to take reasonable care or exercise reasonable skill other than any such obligation or duty arising under this Agreement. Further, nothing in this Agreement shall or shall be deemed to relieve the Transport Operator of any common law duty to mitigate any loss or damage incurred by it.
7.7 Subject to Section 7.11, FREE NOW’s total liability to the Transport Operator in contract, tort (including, without limitation, negligence) or otherwise arising out of or in connection with or in relation to any services supplied under this Agreement or the supply or non-supply or purported supply or delay in supply of any services under this Agreement or otherwise out of or in connection with or in relation to this Agreement or any transaction or matter contemplated by it shall be limited to €1,200. The limitation of liability under this Section 7.7 has effect in relation both to any liability expressly provided for under this Agreement and to any liability arising by reason of the invalidity or unenforceability of any term of this Agreement.
7.8 The Transport Operator shall promptly inform FREE NOW of any communications or notifications regarding claims, proceedings, sanctions, penalties, costs, losses, damage, expenses and/or other claims being made against by third parties (including, without limitation, Passengers) received by it to the extent that such matters relate to Transportation Services provided via the FREE NOW Platform.
7.9 FREE NOW shall not be liable for any loss or damage (including loss of data) caused to the Driver’s hardware or software arising from the Driver Application or the transmission of data.
7.10 The terms of this Agreement are in lieu of all other conditions, warranties and other terms concerning the supply or purported supply of, or failure to supply or delay in supplying, of any goods and/or services (except for those arising under Section 12 of the Sale of Goods Act 1893, if any) which might but for this Section 7.10 have effect between FREE NOW and the Transport Operator or would otherwise be implied or incorporated into this Agreement or any collateral contract, whether by statute, common law or otherwise (including the implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose or as to the use of reasonable skill and care), all of which are hereby excluded.
7.11 Nothing in this Agreement shall limit or exclude FREE NOW's liability for: (i) death or personal injury resulting from the breach of any obligation or duty to take reasonable care or exercise reasonable skill which arises from the express or implied terms of a contract or under common law (but not any stricter duty); (ii) under the tort of deceit; (iii) losses arising from intentional or gross negligence on the part of FREE NOW; (iv) the terms of any written guarantee provided by FREE NOW to the Transport Operator and expressed as such and accepted by the latter; or (v) any other liability that cannot be excluded or limited by law.
7.12 The amounts charged by FREE NOW under this Agreement are determined on the basis of the limits of liability set out in this Section 7.
8. Exclusion from Use
8.1 The reliability of Transport Operators (and, where relevant, its Employed Drivers) operating on the FREE NOW Platform is of great importance for FREE NOW. For this reason, the Transport Operator (and, in the case of Multi-Vehicle Operators, any one or more of its Employed Drivers) may be restricted, suspended or excluded from the use of the FREE NOW Platform, including receipt of FREE NOW’s intermediation services via the FREE NOW Platform (together the “FREE NOW Services”), whether temporarily or permanently or in whole or in part (for example, only with respect to Pay by App, Taxi Services, Other Services or Pre-Booking Requests), in the sole discretion of FREE NOW, on any one or more of the following grounds: (i) a proven or suspected material breach of this Agreement; (ii) a proven or suspected breach of the General Terms of Use for the Driver Application; (iii) failure to comply with Applicable Laws or Road Safety Laws; (iv) failure to comply with the Fraud Policy (as defined at Section 16.9 below) and/or engaging in Fraudulent Activities (as defined in the Fraud Policy); or (v) any other action(s) that, in the opinion of FREE NOW constitute a repudiation of this Agreement (together the “Grounds”).
8.2 For the purposes of Section 8,1, a “breach” includes, but is not limited to: (i) the Transport Operator’s failure to pay any sums due to FREE NOW under this Agreement; (ii) the revocation by the Transport Operator of any SEPA direct debit mandate requested by FREE NOW without prompt replacement thereof; (ii) the cancellation of a Request (including a Pre-Booking) after accepting it without a proven reasonable cause; (iv) a breach of Section 5.7; (v) repeated violations of this Agreement, the General Terms of Use for the Driver Application, Applicable Laws or Road Safety Laws, and/or any other applicable contractual terms or legal provisions; (vi) criminal conviction or behaviour or in the event of an arrest of the Transport Operator or Employed Driver in question by authorities; or (vii) severe and/or repeated complaints by Passengers against a Transport Operator or an Employed Driver.
8.3 Where FREE NOW decides to restrict or suspend the provision of any FREE NOW Services to the Transport Operator (or, in the case of a Multi-Vehicle Operator, an Employed Driver) under this Agreement on any one or more of the Grounds (an “Excluded Party”), it shall, no later than the notification of the restriction or suspension, provide the Excluded Party (and, in the case of an Employed Driver, the employing Multi-Vehicle Operator) with a statement of the reasons for that decision in writing (which may include email).
8.4 Where FREE NOW decides to terminate the provision of any FREE NOW Services to a Transport Operator (or, in the case of a Multi-Vehicle Operator, an Employed Driver) under this Agreement on any one or more of the Grounds (a “Terminated Party”), it shall provide the Terminated Party (and, in the case of an Employed Driver, the employing Multi-Vehicle Operator), at least thirty (30) days prior to the termination taking effect, with a statement of the reasons for that decision in writing (which may include email).
8.5 In the case of a restriction, suspension or termination, the Excluded Party/Terminated Party/employing Multi-Vehicle Operator shall have the opportunity to make representations, including to clarify the facts and circumstances giving rise to the restriction, suspension or termination, as applicable, through FREE NOW’s internal complaint-handling process set out in Section 9 below, and FREE NOW may amend or revoke the decision taken by FREE NOW in accordance with Section 8.3 or Section 8.4, as appropriate. In the event of FREE NOW revoking any such decision, it shall re-instate the Excluded Party’s/Terminated Party’s access to the FREE NOW Platform without undue delay and shall, if requested, provide the Excluded Party/Terminated Party with any access to personal or other data, or both, to which it is entitled that resulted from its use of the FREE NOW Platform prior to the restriction, suspension or termination having taken effect.
8.6 The notice period in Section 8.4 shall not apply where FREE NOW: (i) is subject to a legal or regulatory obligation which requires it to terminate the provision of its intermediation services to a Terminated Party in a manner which does not allow it to respect that notice period; (ii) is entitled to terminate under applicable law; (iii) has, in accordance with the process set out in the Fraud Policy, determined that the Terminated Party has repeatedly breached the Fraud Policy and/or repeatedly engaged in Fraudulent Activities; or (iv) can demonstrate that the Terminated Party has on more than one occasion infringed this Agreement and/or the terms and conditions for the use of the Driver Application. In such event, the Transport Operator and/or its Drivers shall be provided with a statement of reasons for that decision in writing (which may include email) without undue delay.
8.7 Any statement of reasons given in accordance with this Section 8 shall describe the specific facts or circumstances, including contents of any third-party notifications, that led to FREE NOW’s decision as well as the relevant Grounds.
8.8 FREE NOW is not obliged to provide a statement of reasons to the Excluded Party/Terminated Party/Multi-Vehicle Operator where it is subject to a legal or regulatory obligation not to provide the specific facts or circumstances or the reference to the applicable Ground or Grounds, or where FREE NOW can demonstrate that the Excluded Party/Terminated Party/Multi-Vehicle Operator concerned has on more than one occasion infringed this Agreement and/or the General Terms of Use for use of the Driver Application, resulting in termination of the provision of the whole of the online intermediation services in question.
9. Complaints
9.1 FREE NOW provides an electronic tool on the Website to allow the Transport Operator to submit complaints, which will be handled by FREE NOW’s internal complaints handling team. FREE NOW shall only handle complaints made in the manner prescribed on the Website. A link to this complaints tool is available via the “Help” section provided in the Driver Application.
9.2 FREE NOW shall process and respond to any complaint lodged swiftly and effectively, taking into account the importance and complexity of the issue(s) raised. FREE NOW shall communicate to the complainant the outcome(s) of the internal complaint-handling process.
10. Intellectual Property
10.1 For the purposes of this Section 10, “Intellectual Property Rights” includes any patent, trade or other mark, registered design, topography right, copyright, database right or any other right in the nature of any of the foregoing (or application, or right to apply for, any of the foregoing), and trade or business name, invention, discovery, improvement, design, technique, confidential process or information or know how, in each case subsisting anywhere in the world and whether registered, unregistered or unregisterable, and any licence or right of user of any of the foregoing, and the full right to all legal protection relating to the same.
10.2 FREE NOW grants to the Transport Operator a limited, royalty-free, revocable, non-transferrable and non-exclusive licence to the Transport Operator, without any right to grant sub-licence(s), to use the Intellectual Property Rights (as defined below) in the FREE NOW Platform, solely for the purpose of providing the Transportation Services. Any further commercial use or other exploitation of FREE NOW rights, services or contents is not permissible. The Transport Operator agrees and acknowledges that: (i) save as aforesaid, it has no rights and will obtain no rights in the Intellectual Property Rights (and the goodwill associated with such rights shall at all times belong and inure to FREE NOW); (ii) the Transport Operator shall not use or permit to be used by any person under its control any of the Intellectual Property Rights without the prior written consent of FREE NOW; (iii) the Transport Operator shall not do, or omit to do, and shall not authorise any third party to do, anything which might prejudice or adversely affect the validity of any Intellectual Property Rights owned by FREE NOW or any company of its group, and, shall immediately cease to use any Intellectual Property Rights upon the termination or expiry of this Agreement; and (iv) the Transport Operator shall, at the expense and request of FREE NOW, take all reasonable steps to assist FREE NOW to maintain the validity and enforceability of FREE NOW’s Intellectual Property Rights.
10.3 Except to the extent that FREE NOW cannot prohibit such acts by law, the Transport Operator shall not modify, copy, translate, disseminate, publish, transmit, distribute, present, disassemble, decompile, reverse engineer (including error correction or any other type of maintenance), create derivative works of or assign the rights to any part of the FREE NOW Platform or any content that appears on the FREE NOW Platform or the Website.
10.4 The Transport Operator is not authorised to use the logo of FREE NOW (and/or any other registered or unregistered trademark associated with FREE NOW’s services) or mention the name of FREE NOW (and/or any other registered or unregistered trademark associated with FREE NOW’s services) for its own purposes, including as a reference on his/its Website, on his/its SPSV or in any other way without the prior written consent of FREE NOW.
10.5 Any Intellectual Property Rights owned by the Transport Operator shall remain unaffected, and nothing in this Agreement shall be construed to convey or transfer any ownership or proprietary interest in any Intellectual Property Rights owned by the Transport Operator to FREE NOW.
11. Communications, Data and Data Protection
11.1 The Transport Operator is aware that his/her personal data, and any personal data under his/her/its control, including personal data of any Employed Drivers, shall be collected, processed and used in connection with the FREE NOW Services, within the meaning of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 (“GDPR”) and any applicable implementing national laws (including the Data Protection Acts 1988-2018). This Agreement and the FREE NOW Privacy Notice are available at free-now.com/ie/gtc-privacy-policy-cookies/. The Transport Operator also undertakes to fully comply with any obligations on it arising out of the GDPR and its implementing laws.
11.2 As part of its use of the FREE NOW Platform, the Transport Operator shall have access to the following data (which may include personal data as defined under the GDPR): (i) data on Passengers, including both potential Passengers and Passenger from whom a Request has been accepted (such data may include name, geo-localisation data and a masked phone number); and (ii) data provided by that Transport Operator to FREE NOW in connection with or as part of the provision by it of the Transportation Services, including name, address, date of birth, phone number, email address, Driver and SPSV licence details, photo, area of operation, geo-localisation data and bank account data (“Data”). FREE NOW receives the Data from each of the Transport Operators, Drivers and Passengers as part of its provision of the FREE NOW Services and its services to Passengers.
11.3 The Transport Operator may access the Data through using the Driver Application (in the case of Data falling under section 11.2(i) above) or through a data subject access request to FREE NOW’s customer service team (in the case of Data falling under section 11.2(ii) above or any other Trasnport Operator personal data processed by FREE NOW). The Transport Operator shall give notice to FREE NOW of any unauthorised use, disclosure, theft or other loss of the Data immediately upon or as soon as is practicable after but in any case no later than 24 hours after becoming aware of it.
11.4 Any personal data (as such term is defined in the GDPR) of Passengers or potential Passengers that is shared with a Transport Operator (or its Employed Drivers, if applicable) via the Driver Application or otherwise must not be used by the Transport Operator (or its Employed Drivers, if applicable) for any purposes other than providing the Transportation Services and must not be disclosed to third parties by the Transport Operator (or its Employed Drivers, if applicable) without the prior consent of FREE NOW and the Passenger or potential Passenger. Users shall comply with all of their obligations under the GDPR and any other applicable laws relating to data protection, including the Data Protection Acts 1998-2018 and any guidance issued by the Data Protection Commission in Ireland.
12. Confidentiality
12.1 The Transport Operator shall keep confidential FREE NOW’s Confidential Information (including, without limitation, taking all precautions that it employs in respect of its own Confidential Information) and shall not, without the prior written consent of FREE NOW, use, disclose, copy or modify FREE NOW’s Confidential Information other than as necessary for the exercise of its rights, and performance of its obligations, under this Agreement.
12.2 “Confidential Information” shall include all information or data (in whatever form communicated or recorded) belonging, held or relating to a party, its business affairs or activities, including (but not limited to): (i) information of a technical, financial, organisational, commercial or strategic nature; (ii) any other information relating to the activity of each of the parties; (iii) in the case of FREE NOW, information relating to Passengers; and (iv) information due to its character or nature, a reasonable person in a like position to its recipient and under like circumstances would treat as confidential, including information protected as trade secrets.
12.3 The following are excluded from the provisions of Section 12.1: (i) internal disclosure of Confidential Information to sub-contractors, employees or consultants of the Transport Operator to the extent strictly necessary for the compliance with the provisions of this Agreement and provided that the Transport Operator ensures that such persons adhere to the same standard of confidentiality as under the terms provided herein; (ii) information that becomes publicly known, not due to its own negligence, or is transmitted to it by a third party without a breach of this Section 12; and (iii) disclosure of information to the extent strictly necessary for compliance with legal provisions or with a court, governmental or regulatory authority order, to the extent of the relevant disclosure requirement.
12.4 The confidentiality obligations contained in this Section 12 shall survive the termination of or assignment of rights under this Agreement.
12.5 The Transport Operator shall give notice to FREE NOW of any unauthorised use, disclosure, theft or other loss of FREE NOW’s Confidential Information immediately upon or as soon as is practicable after becoming aware of it.
13. Independence
13.1 Each of the parties acknowledges and agrees that neither the Transport Operator nor any Employed Driver is, and neither will it/they become, an employee of FREE NOW during the term of this Agreement and consequently neither shall be entitled to any fee, salary, pension, bonus, or other fringe benefits from FREE NOW. Each of the Transport Operator and FREE NOW further acknowledges and agrees that FREE NOW has no power of direction or authority over the Transport Operator or any Employed Drivers (if applicable), each of which/whom shall act in all circumstances as independent contractors, without any mutuality of obligation between the parties, integration of the Transport Operator/its Employed Drivers with the FREE NOW business or being subject to FREE NOW’s management or discipline. The Transport Operator, any Employed Drivers or any other employees shall not represent themselves or hold themselves out as representatives or employees of FREE NOW.
13.2 This Agreement and the services provided under it cannot be interpreted as giving rise to a partnership, joint venture or agency relationship between FREE NOW and the Transport Operator. Neither party may act, assume any commitment or create any obligation on behalf of the other.
14. Alternative Dispute Resolution
14.1 In case of any dispute arising out of or in connection with this Agreement or any breach of it (including any complaint that could not be resolved by way of the complaints handling system set out at Section 9), the matter shall be referred in writing in the first instance to the Head of Operations of FREE NOW with a view to it being resolved in good faith.
14.2 If the dispute cannot be resolved with fifteen (15) business days of the referral, or such other longer period as may be agreed upon between the parties in writing, the parties shall refer the dispute to either: (i) a mediator sourced through the Centre for Effective Dispute Resolution and agreed between the parties; (ii) a single mediator to be appointed in accordance with the mediation procedures of the Irish Commercial Mediation; or (iii) such other organisation that provides mediation services. The cost of such mediator shall be borne equally by parties, unless the appointed mediator determines otherwise.
15. Termination
15.1 This Agreement shall come into effect on first successful registration of the Transport Operator on the FREE NOW Platform and shall continue in full force and effect until terminated by agreement of the parties or until terminated: (i) by FREE NOW in accordance with Section 15.2; or (ii) by either party in accordance with Section 16.4. The Transport Operator has the right to terminate this Agreement without cause by giving at least thirty (30) days advance notice in writing (including email) to FREE NOW (which right does not affect the right of FREE NOW to terminate this Agreement in accordance with Section 15.2).
15.2 The occurrence of an Event of Default (as defined below) shall constitute a repudiation (but not a termination) of this Agreement by the Transport Operator (whether the occurrence of that Event of Default is voluntary, involuntary or occurs by operation of law or pursuant to any decree or order of any court). If an Event of Default occurs then FREE NOW may, at its option (and without prejudice to any other rights or remedies which it may have under this Agreement or otherwise): (i) restrict or suspend the operation of this Agreement for such period of time as it, in its absolute discretion, sees fit in accordance with Section 8.3; (ii) accept such repudiation and by notice to the Transport Operator and with immediate effect terminate the engagement of the Transport Operator in accordance with Section 8.4; and/or (iii) proceed by appropriate court or other action to enforce performance of this Agreement and/or to recover damages for the breach of this Agreement.
15.3 For the purposes of this Agreement, each of the following shall be an “Event of Default”: (i) the occurrence of any of the events described at Section 8.1; (ii) the Transport Operator is, or is deemed for the purposes of any relevant law to be, unable to pay its debts as they fall due, admits inability to pay its debts as they fall due, suspends making payments on all or any class of his debts or announces an intention to do so, or a moratorium is declared in respect of any of his indebtedness; (iii) the Transport Operator is adjudicated bankrupt or enters into any voluntary arrangement or composition with his creditors or generally; (iv) the Transport Operator becomes of unsound mind, commits any serious act of dishonesty or repeated acts of dishonesty; or (v) the Transport Operator ceases to be engaged in the provision of Transportation Services.
15.4 FREE NOW reserves the right to set the Transport Operator’s account to “inactive” if the Transport Operator (or any one of its Employed Drivers, if applicable) does not provide any Transportation Services via FREE NOW for an unbroken period of at least three (3) months. In such event, FREE NOW shall inform the Transport Operator of the taking of this action, and as a result the Transport Operator shall no longer be able to receive any Requests. The Transport Operator may request to have its account re-opened, such request to be made under the Help section of the Website.
15.4 Upon termination of this Agreement, for any reason, including any termination by FREE NOW: (i) the Transport Operator undertakes to return to FREE NOW all data, materials and/or equipment belonging to FREE NOW, including all Confidential Information; and (ii) the Transport Operator remains bound by the obligations set forth herein with regard to confidentiality (Section 12), intellectual property (Section 10) and processing of personal data (Section 11), all of which shall continue to bind the Transport Operator following termination of this Agreement. For information on FREE NOW’s personal data retention practices, please refer to FREE NOW’s Driver’s Privacy Notice.
16. Final Provisions
16.1 This Agreement (and, without prejudice to Section 16.8, any non-contractual obligations arising out of or in connection with it) shall be governed by and construed in accordance with Irish law.
16.2 The Irish courts shall have jurisdiction to hear, determine and settle any dispute arising out of or in connection with this Agreement (and, without prejudice to Section 16.8, any non-contractual obligations arising out of or in connection with it) and the parties submit to the jurisdiction of the Irish courts for that purpose.
16.3 Should the whole or any part of any provision of this Agreement be or become illegal, invalid or unenforceable, or should any provision become ineffective, impractical or should it contain a loophole, the effectiveness and enforceability of the remainder of the provision in question or the remaining provisions shall not be affected. A provision coming as close as possible to the economic purpose of this Agreement shall be incorporated to replace the ineffective provision or remedy the loophole, and the parties agree to accept and observe such substituted provisions (in place of all or any of those comprised in this Agreement) as FREE NOW may from time to time specify.
16.4 Without prejudice to Sections 8 and 15 above, any non-compliance or delay in compliance with any contractual obligation by either party shall be deemed justified if, and to the extent, that there occurs an event of Force Majeure. “Force Majeure” means any event that is beyond the reasonable control of the party affected by it, including, but not limited to, strikes, lock-outs or other industrial disputes (whether involving the workforce of FREE NOW or any other party), failure of a utility service or transport or telecommunications network, act of God, pandemic, epidemic, quarantine, lockdown, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of providers or sub-contractors. The affected party shall immediately notify the other party in writing (including email) and shall use all reasonable efforts to resume full compliance with its contractual obligations as soon as possible. If the period during which the Force Majeure persists exceeds thirty (30) days, either party may terminate this Agreement by written notice sent to the other fifteen (15) days in advance, and no compensation shall be payable by either party in the event of such termination.
16.5 The Transport Operator may not assign or transfer all or any part of its this Agreement or any of the rights arising hereunder without the prior written consent of FREE NOW. FREE NOW may, at any time, assign or transfer any of its rights under this Agreement or the Agreement as a whole to any third party, at its sole discretion without restriction, and the Transport Operator hereby gives its consent to any such assignment or transfer. The Transport Operator agrees that FREE NOW may at any time during the currency of this Agreement transfer by way of novation its rights and obligations under this Agreement, and, upon completion of any such novation (including the assumption by the transferee of all of FREE NOW’s remaining obligations under this Agreement). FREE NOW shall be released from, and shall have no further obligations under, this Agreement. The Transport Operator shall promptly execute all documents reasonably requested by FREE NOW to effect, perfect, record or implement any such novation, and shall promptly comply with any other reasonable requests of FREE NOW or its successors or assigns in respect of any such novation. This Agreement shall bind and inure to the benefit of the parties, their successors and permitted assigns.
16.6 FREE NOW reserves the right to modify the terms and/or conditions of this Agreement upon written notice (including email) to the Transport Operator. The notice period for any modifications shall in all cases be reasonable and proportionate to the nature and extent of the modifications, and their consequences for the Transport Operator, including any technical or commercial changes needed to comply with the modifications, but shall in all cases be given no later than 15 (fifteen) days prior to a modification taking effect. Such modifications shall be binding on the Transport Operator upon its acceptance of the modified Agreement. Modifications shall not be retroactive, except where required pursuant to a legal or regulatory obligation, or where they benefit the Transport Operator. The Transport Operator shall have the right to terminate this Agreement before the expiry of the given notice period and shall notify FREE NOW in writing (including email) of any such termination. Any such termination by the Transport Operator shall be given effect within 15 days of receipt by the Transport Operator of the Notice. Continued use of the FREE NOW Platform after any such changes shall constitute the Transport Operator’s consent to such changes and shall give effect to the Transport Operator’s waiver of the notice period, except where such changes require the Transport Operator to make significant technical adjustments in order to provide Transportation Services, in which case the changes shall come into effect upon expiry of the notice period.
16.7 The notice period set out in Section 16.6 shall not apply where FREE NOW: (i) is subject to a legal or regulatory obligation which requires it to change this Agreement; (ii) on an exceptional basis, has to change this Agreement on an urgent basis to address an unforeseen and imminent danger related to defending the FREE NOW Platform, the FREE NOW Services or any users thereof (including Transport Operators, Drivers and/or Passengers) from fraud, malware, spam, data breaches or other cyber security risks.
16.8 This Agreement is supplemented by the General Terms of Use for the Driver Application. The express terms of this Agreement and the General Terms of Use for the Driver Application constitute the sole and entire agreement between the parties in relation to the provision of the Transportation Services by the Transport Operator and the provision of the FREE NOW Services by FREE NOW, and supersedes all prior written and oral arrangements, understandings, representations, warranties and agreements between them in that regard (if any). Each party acknowledges that it is not relying, and will not seek to rely, on any arrangement, understanding, representation, warranty, agreement, term or condition which is not expressly set out in this Agreement.
16.9 The Transport Operator undertakes: (1) to comply at all times with Free Now’s Fraud Policy, available here (the “Fraud Policy”). In the event of any breach of the Fraud Policy by the Transport Operator, FREE NOW shall be entitled, in accordance with the terms of the Fraud Policy, to terminate this Agreement immediately and without notice in accordance with Section 8.
16.10 Where FREE NOW has terminated this Agreement in accordance with Section 16.9, Free Now reserves the right, in accordance with the procedure set out in the Fraud Policy and at its sole discretion, to withhold any payment to a Transport Operator that is deemed to arise out of, or in connection with, any Fraudulent Activities (as defined in the Fraud Policy) of a Transport Operator.
16.11 The failure of FREE NOW to enforce any right or provision of this Agreement, or any delay in such enforcement, shall not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or shall be effective only if in writing and signed by a duly authorised representative of FREE NOW. Except as expressly set forth in this Agreement, each of the rights of either party under this Agreement may be exercised as often as is necessary, is cumulative and the exercise by either party of any of its remedies under this Agreement shall be without prejudice to its other remedies under this Agreement or otherwise.
16.12 Each party shall (at its own cost) do and execute, or arrange for the doing and executing of, each necessary act, document and thing as may be reasonably requested of it by any other party to implement this Agreement.
Valid from 11 January 2023
