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This Terms of Service Agreement (this "Agreement") is a binding contract between You ("Student", "you", or "your") and Trubicars Ltd.. ("Trubicars", "we", or "us"). This Agreement governs your access to and use of the Services provided for herein.
THIS AGREEMENT TAKES EFFECT WHEN YOU CLICK THE "I ACCEPT THE TERMS OF SERVICE AGREEMENT" BUTTON OR BY ACCESSING OR USING THE SERVICES (the "Effective Date"). BY CLICKING ON THE "I ACCEPT" BUTTON OR BY ACCESSING OR USING THE SERVICES YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT AND WARRANT THAT YOU ARE AN INDIVIDUAL WITH THE CAPACITY TO ENTER INTO THIS AGREEMENT AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS.
IF YOU DO NOT AGREE TO THESE TERMS, PLEASE DO NOT USE OUR SERVICES.
(a) “Acceptable Use Policy” has the meaning set forth in Section 4(a).
(b) "Aggregated Statistics" has the meaning set forth in Section 3(f).
(c) "Authorized User" means Students for whom access to the Services has been purchased hereunder.
(g) "Trubicars IP" means the Services, the Documentation, and all intellectual property provided to Student or any other Authorized User in connection with the foregoing. For the avoidance of doubt, Trubicars IP includes Aggregated Statistics and any information, data, or other content derived from Trubicars's monitoring of Student's access to or use of the Services, but does not include Student Data.
(h) “Instructor” means a person who uses the Trubicars IP to offer their services as a driving instructor to Students.
(i) "Services" means the services provided by Trubicars under this Agreement that are detailed on Trubicars's website available at https://www.trubicars.ca/. While the Services help facilitate an Instructor and Student relationship, the Services do not include the provision of driving lessons or instructions to Students.
(j) “Student” means a person who uses the Trubicars IP to search for and find a Driving School and/or Instructor and who communicates with a Driving School and/or Instructor through the Trubicars IP.
2. Student Acknowledgements and Agreements. If you are a Student, the following applies to you:
(a) You acknowledge and agree that any driving instruction will be provided by a Driving School and/or Instructor, and no relationship exists between you and Trubicars with respect to driving instruction. The Services are solely to help Driving Schools, Instructors and Students facilitate communications and Trubicars is not a party to any contractual relationship established between any Driving Schools, Instructors and Students. Trubicars makes no representations or warranties with respect to the suitability of any prospective Driving School or Instructor and you hereby waive any claim against Trubicars for the acts or omissions of any Driving School or Instructor. The relationship between you and any Driving School or Instructor from whom you may receive driving instructions from is governed by the local laws of the jurisdiction where you receive such instruction.
(b) All scheduling matters for driving lessons shall be coordinated and communicated between you and the Driving School or Instructor.
(c) Trubicars is not responsible for any failure of the Driving School or Instructor to perform any obligations owed to you, including in the event a Driving School or Instructor is insolvent, bankrupt or fails to provide any services.
(d) Trubicars is not responsible for any refunds owing or claimed by you from any Driving School or Instructor.
(e) The Driving School and Instructors are responsible for ensuring all licenses, permits and insurance necessary to provide its services are in place. Trubicars has not, and is not liable to confirm or provide any due diligence with respect to the same.
(f) Trubicars does not guarantee the availability of any particular Driving School, Instructor or vehicle.
(a) Location of Services. You acknowledge and agree that Trubicars’s servers and Student Data may be located on servers located inside or outside of Canada, including in nations that may have different laws than Canada. The Services are not intended for use outside of Canada or in the province of Quebec. You represent and warrant that you are a resident of Canada and that you are not a resident of Quebec. You agree not to use the Service outside of Canada or in the province of Quebec.
(f) Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, Trubicars may monitor Student's use of the Services and collect and compile data and information related to Student's use of the Services to be used by Trubicars in an aggregated and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services ("Aggregated Statistics"). As between Trubicars and you, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Trubicars. You acknowledge that Trubicars may compile Aggregated Statistics based on Student Data input into the Services. You agree that Trubicars may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law; provided that such Aggregated Statistics do not identify Student or Student's Confidential Information.
(h) Suspension. Notwithstanding anything to the contrary in this Agreement, Trubicars may temporarily suspend Student's and any other Authorized User's access to any portion or all of the Services if: (i) Trubicars reasonably determines that (A) there is a threat or attack on any of the Trubicars IP; (B) Student's or any other Authorized User's use of the Trubicars IP disrupts or poses a security risk to the Trubicars IP or to any other Student or vendor of Trubicars; (C) Student or any other Authorized User is using the Trubicars IP for fraudulent or illegal activities; (D) subject to applicable law, Student has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) Trubicars's provision of the Services to Student or any other Authorized User is prohibited by applicable law; (ii) any vendor of Trubicars has suspended or terminated Trubicars's access to or use of any third-party services or products required to enable Student to access the Services; or (iii) in accordance with Section 6 (any such suspension described in subclause (i), (ii), or (iii), a "Service Suspension"). Trubicars shall use commercially reasonable efforts to provide written notice of any Service Suspension to Student and to provide updates regarding resumption of access to the Services following any Service Suspension. Trubicars shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Services Suspension is cured. Trubicars will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Student or any other Authorized User may incur as a result of a Service Suspension.
(a) Acceptable Use Policy. The Services may not be used for unlawful, fraudulent, offensive, or obscene activity, as further described and set forth in Trubicars's acceptable use policy ("Acceptable Use Policy") located at https://www.trubicars.ca/terms-and-conditions/, as may be amended from time to time. You will comply with all terms and conditions of this Agreement, all applicable laws, rules, and regulations, and all guidelines, standards, and requirements that may be posted in the Acceptable Use Policy from time to time.
5. Service Levels. Subject to the terms and conditions of this Agreement, Trubicars shall use commercially reasonable efforts to make the Services available in accordance with the service levels described in this Section 5 ("Service Levels") as follows:
(a) Trubicars shall take commercially reasonable steps to ensure that the Services are available 90% of the time, as determined on a minute-by-minute basis for the total number of minutes in a calendar month (the “Uptime Level”);
(b) The Service level shall not take into account and Trubicars shall not be liable for any internet infrastructure between you and Trubicars’s servers, or for any Third-Party Products;
6. Fees and Payment. All amounts owing by you to any Driving School or Instructor shall be remitted to Trubicars. Trubicars will retain 2% of such amount (the “Fee”) and remit the balance to the Driving School or Instructor retained by you. Trubicars may utilize an online payment facilitator such as Stripe, PayPal, or Square and any service fees charged by such facilitator may be charged to you.
9. Privacy Policy. Trubicars complies with its privacy policy available at https://www.trubicars.ca/privacy-policy/ ("Privacy Policy"), in providing the Services. The Privacy Policy is subject to change as described therein. By accessing, using, and providing information to or through the Services, you acknowledge that you have reviewed and accepted our Privacy Policy, and you consent to all actions taken by us with respect to your information in compliance with the then-current version of our Privacy Policy.
11. Limited Warranty and Warranty Disclaimer.
(a) Student Warranty; General. You warrant that you own all right, title, and interest, including all intellectual property rights, in and to Student Data and that both the Student Data and your use of the Services are in compliance with the Acceptable Use Policy. You warrant that all information that you provide to and through the Services is true and correct.
(c) THE SERVICES ARE PROVIDED "AS IS" AND TRUBICARS SPECIFICALLY DISCLAIMS ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. TRUBICARS SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. TRUBICARS MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET YOUR OR ANY OTHER PERSON'S OR ENTITY'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY OF YOUR OR ANY THIRD PARTY'S SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED. WITHOUT LIMITING THE FOREGOING, TRUBICARS EXPRESSLY DISCLAIMS ANY WARRANTY THAT A DRIVING SCHOOL OR INSTRUCTORS IS A SUITABLE, THAT ANY VEHICLES USED FOR DRIVING INSTRUCTION IS SAFE AND SUITABLE, AND EXPRESSLY DISCLAIMS ANY OTHER WARRANTY WHATSOEVER WITH RESPECT TO ANY OTHER THING POSTED OR LISTED BY A THIRD PARTY TO OR THROUGH THE SERVICE.
12. Indemnification. Student shall indemnify, hold harmless, and, at Trubicars's option, defend Trubicars and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all Losses arising from or relating to any Third-Party Claim (i) that the Student Data, or any use of the Student Data in accordance with this Agreement, infringes or misappropriates such third party's intellectual property rights; (ii) based on Student's or any Authorized User's negligence or wilful misconduct or use of the Services in a manner not authorized by this Agreement; (iii) any breach of Student’s warranties under sections 11(a) or 11(b);(iv) any willful act or omission of Student; and (v) any Losses arising from the Students use of any Driving School or Instructor’s services; provided that Student may not settle any Third-Party Claim against Trubicars unless Trubicars consents to such settlement, and further provided that Trubicars will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defence thereof by counsel of its own choice.
(b) Termination. In addition to any other express termination right set forth in this Agreement:
(i) either party may terminate this Agreement, for any reason upon 30 days' advance notice.
(d) Survival. This Section 14(d), Sections 6, 12, and 13 and any other right, obligation, or required performance of the parties in this Agreement which, by its express terms or nature and context is intended to survive termination or expiration of this Agreement, will survive any such termination or expiration.
15. Modifications. You acknowledge and agree that we have the right, in our sole discretion, to modify this Agreement from time to time, and that modified terms become effective on posting. We will notify you of material modifications through direct email communication at your last email address on file with us for your account. You are responsible for reviewing and becoming familiar with any such modifications. Your continued use of the Services after the effective date of the modifications will be deemed acceptance of the modified terms. Trubicars will provide 30 days’ advance notice of changes to any service level that Trubicars reasonably anticipates may result in a material reduction in quality or services.
16. Dispute Resolution. If any dispute or controversy arises between you and Trubicars relating to or arising from this Agreement or the relationship between you and Trubicars (a “Dispute”), the Dispute will be resolved in accordance with this Section 16.
YOU AND TRUBICARS HEREBY EXPRESSLY WAIVE THE RIGHT TO ANY TRIAL BY JURY AND THE RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT. YOU AND TRUBICARS EACH AGREE THAT CLAIMS WILL ONLY BE BROUGHT IN YOUR AND TRUBICARS’S INDIVIDUAL CAPACITIES AND NEITHER OF YOU NOR TRUBICARS WILL BRING A CLAIM AS A PART OF A CLASS, WHETHER AS LEAD PLAINTIFF, MEMBER, REPRESENTATIVE, OR OTHERWISE.
(a) Negotiation. Before resorting to arbitration, each of you and Trubicars will attempt to resolve the Dispute through negotiation, which negotiation may be conducted electronically or virtually. The complaining party (the “Complainant”) will first provide the other party (the “Respondent”) with a written notice of the dispute (a “Notice of Dispute”). The Notice of Dispute will include (i) the full legal name and contact information of the Complainant, (ii) describe the nature and basis of the claim or dispute in detail, and (iii) set out the specific relief that the Complainant is seeking. If Trubicars is the Complainant, Trubicars will send any Notice of Dispute to your last email address that you provided to Trubicars. If you are the complainant, you will send the Notice of Dispute to the address of our headquarters, which can be found on our website at https://www.trubicars.ca, prepaid, by registered mail or nationally recognized courier, with proof of receipt requested. The effective date of the Notice of Dispute will be the day that Trubicars receives it, if sent to Trubicars, or the day that Trubicars sends it by email if sent to you.
(b) Binding Arbitration. If you and Trubicars are unable to come to a negotiated agreement within 30 days of the effective date of the Notice of Dispute, the Dispute will be finally and conclusively resolved by binding arbitration under the Arbitration Rules of the ADR Institute of Canada. The seat of arbitration will be Waterloo, Ontario, Canada and the arbitration may be conducted virtually at the request of either party. The language of the arbitration will be English. The arbitrator will be selected in accordance with the Arbitration Rules, and will be a former judge of Ontario or a senior lawyer licensed to practice law in Ontario and experienced in commercial disputes. There will be no appeal from the decision of an arbitrator except on a question of law. Costs of the arbitrator shall be determined by the arbitrator consistently with costs practice in the Superior Court of Justice in Ontario. To the maximum extent permitted by law, each arbitration shall be individually between two parties at a time, and no arbitrations shall be combined so as to form a class arbitration.
(c) Enforceability/Law. Any question that must be put to a court pertaining to a Dispute shall be put to the courts of Ontario located in Waterloo, Ontario. If this Section 16 is found to be unenforceable in whole or in part, then the exclusive jurisdiction and venue provisions of Sections 17 and 18 shall govern. Any party may obtain an order reflecting a decision or order of the arbitrator in any court of competent jurisdiction.
17. Governing Law. This Agreement and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute, are governed by, and construed in accordance with, the laws of the Province of Ontario and the federal laws of Canada applicable therein, without giving effect to any choice or conflict of law provision or rule (whether of the Province of Ontario or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the Province of Ontario.
18. Choice of Forum. Any legal suit, action, litigation, or proceeding of any kind whatsoever in any way arising out of, from, or relating to this Agreement, including all statements of work, exhibits, schedules, attachments, and appendices attached to this Agreement, the services provided hereunder, and all contemplated transactions, that are not resolved in accordance with Section 16 shall be instituted in the courts of the Province of Ontario, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, litigation, or proceeding. Service of process, summons, notice, or other document by mail to such party's address set forth herein shall be effective service of process for any suit, action, litigation, or other proceeding brought in any such court. Each party agrees that a final judgment in any such suit, action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. The parties irrevocably and unconditionally waive any objection to the venue of any action or proceeding in such courts and irrevocably waive and agree not to plead or claim in any such court that any such action or proceeding brought in any such court has been brought in an inconvenient forum.
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