1. PARTIES TO THE AGREEMENT
This Agreement is entered into between Marketing On Wheels (ABN 58 485 527 910 ), (hereinafter “Marketing On Wheels”) and [name], an individual (hereinafter “driver”). This Driver Agreement (the “Agreement”) sets the terms and conditions upon which Marketing On Wheels contract vehicle owners and drivers to provide promotional or advertising services (“Services”), and constitutes a legal agreement between the Driver and Marketing On Wheels.
Upon execution (otherwise) of this Agreement, Driver and Marketing On Wheels shall be bound by the terms and conditions set forth herein. For the sake of clarity, this Agreement is only between the Driver and Marketing On Wheels and not between the Driver and the Advertiser.
2. TERMS AND DEFINITIONS
2.1. Advertisement: Advertiser’s Vinyl Wrap or other promotional materials that Driver has agreed to install on the Vehicle.
2.2. Advertiser: client who has instructed Marketing On Wheels to provide the Services, and whose Advertisements Driver has agreed to install on the Vehicle.
2.3. Radar: Bluetooth device that tracks travel routes and distance. The Radar is placed on the Vehicle beneath the Wrap(Graphics), and is required to ensure payment for the Driver.
2.4. Campaign: the service provided to the Advertiser.
2.5. Campaign Period: the duration between the start and end of a campaign as specified in the Schedule
2.6. Creative: artwork/design to be printed and wrapped on the Vehicle. Creative is supplied by Marketing On Wheels.
2.7. Driver App: the downloadable application that is installed on the Driver’s smartphone and used whenever the Driver is driving the vehicle and wishes to record the driving for tracking and payment purposes. The APP active whenever the owner of the vehicle starts using the vehicle
2.8. Driving History Record Check: a check conducted at the start of the Driver’s first campaign. Drivers who are successful with their record check will be refunded the full cost of obtaining the Driving History Record Check.
2.9. One-Way Vision Advertisement: that part of the Vinyl Wrap to be installed on the rear window of the vehicle. The one-way vision material has been designed to allow drivers’ view through their windows without difficulty.
2.10.Vinyl Wrap: the material to be installed on the Vehicle.
2.11.Vehicle: the vehicle used by the Driver on which the Advertisement is, or is to be installed. The Vehicle must not be older than 10 years and its paint must not have been modified from the original factory paint.
2.12.Wrap Installation: process of wrapping a vehicle with the agreed creative. This process will be performed by an authorized Wrapping partner.
2.13.Wrap Removal: process of removing the wrap from a vehicle.
2.14.Wrapping partner: an authorized wrapping partner contracted by Marketing On Wheels to install the advertisement.
Under this Agreement, the Driver undertakes to provide Marketing On Wheels with some or all of the following services:
3.1.Cooperate with Marketing On Wheels and the Wrapping Partner to arrange for the Vehicle to have the Advertisement installed
3.2.Drive the wrapped Vehicle for the Campaign Period
3.3.Participate, by agreement, in other offered promotional activities
Marketing on Wheels is responsible for:
4.1. Provide reference name for database information use only
providing a Driver with a Username which the Driver will use to access the driver app
4.2. provide the Advertisement to be used during the campaign
4.3. scheduling the installation of the Advertisement on the Vehicle
4.4. installing the Advertisement on the Vehicle and paying for its installation
4.5. removing the Advertisement from the Vehicle and paying for its removal. Driver will be responsible for:
4.6. providing the Vehicle in a suitable condition to install the Advertisement. Driver must be either the sole owner of the Vehicle or the primary driver of the Vehicle and have express consent from the owner of the Vehicle that the Vehicle may be used for the Advertisement.
4.7. maintaining a full Australian driver’s license.
4.8. maintaining the Vehicle in good operating condition, consistent with industry safety and maintenance standards for a vehicle of its kind.
4.9. Providing Marketing on Wheels with photographs of the Vehicle within 48 hours of a request to do so in order to help Marketing on Wheels verify the condition of the Vehicle and the Advertisement.
4.10. taking such precautions as may be reasonable and proper, including maintaining adequate insurance that meets the requirements of all applicable laws, driving responsibly, and not using the device on which the Driver App is installed in a manner that contravenes the law or safe practices.
5. DRIVER OBLIGATIONS
During the Campaign Period, the Driver is expected to:
5.1. Not tamper with the Advertisement or Radar
5.2. Drive the Vehicle as it would normally be driven
5.3. Notify Marketing on Wheels of any change(s) to Driver’s schedule that could adversely affect Driver’s availability or that of the Vehicle, whether known or unknown at the time of this Agreement, no later than 7 days prior to such change(s).
5.4. Take adequate measures to ensure that the Vehicle do not carry advertising for any other product, individual, business or organization during the Campaign Period, without Marketing on Wheels express written consent.
5.5. Conduct a Driving History Record Check before the commencement of the Campaign.
5.6. Notify Marketing on Wheels of any actual or suspected breach or improper use or disclosure of the Driver’s Username and identification or the Driver App.
Nothing in this Agreement will be construed to create the relationship of employer and employee, principal and agent, partnership or joint venture, or any other fiduciary relationship between Marketing on Wheels and the Driver. Accordingly,
6.1. Marketing on Wheels does not, and shall not be deemed to, direct or control the Driver generally in his/her performance under this Agreement, specifically in connection with the provision of services, acts or omissions, or the operation and maintenance of the Vehicle. The Driver retains the sole right to determine when, where, and for how long he/she will utilise the Driver App. The Driver retains the option, via the Driver App, to accept or to decline or ignore an invitation for a new Campaign.
6.2. Driver agrees that Marketing on Wheels shall have no liability or responsibility for the withholding, collection or payment of any taxes, insurance premiums or Superannuation contributions on any amounts paid by Marketing on Wheels.
6.3. Driver agrees to indemnify Marketing on Wheels from any and all claims in respect to Marketing on Wheels failure to withhold and/or remit any taxes, insurance premiums or Superannuation contributions.
6.4. Driver has no authority to, and will not, exercise or hold him/herself out as having any authority to enter into or conclude any contract or to undertake any commitment or obligation in Marketing on Wheels name or on Marketing on Wheels behalf.
6.5. Driver acknowledges and agrees that he/she has complete discretion to provide services or otherwise engage in other business or employment activities. For the sake of clarity, Driver understands that he/she retains the right to use other software applications and engage in any other occupation or business.
7. LIMITATION OF LIABILITY AND INDEMNITY
Driver indemnifies Marketing on Wheels (and its employees, officers and agents) against any proceedings, demands, losses, costs (including legal costs on a full indemnity basis), damages and other liabilities of any nature taken, made or awarded against or incurred by Marketing on Wheels (and/or its employees, officers and agents) (the “Loss”) arising from or in connection with
7.1. actions or inactions of a third party in relation to the Driver, the Driver’s activities or the Vehicle. Driver shall have the sole responsibility for any obligations or liabilities to third parties that arise from the use of the Vehicle.
7.2. vandalism caused to the Vehicle during the Advertising Period, regardless of whether such damage or vandalism is deemed by the Driver or any third party to be caused as a result of the Advertisements.
7.3. installation and removal of the Vinyl Wrap. Marketing on Wheels has taken all reasonable steps to limit risk, but upon application and removal of the Vinyl Wrap damage may be caused to the Vehicle’s paintwork or appearance. In order to mitigate the risk of damage to the paintwork of the Vehicle, we reserve the right to reject any Vehicle we deem to be in poor condition as being unsuitable for the Advertisement.
7.4. installation of a One-way Vision Advertisement or operation of the Vehicle with One-way Vision Advertisements.
8. FEES AND PAYMENTS
Unless otherwise communicated and agreed prior to any advertising period, Marketing on Wheels shall pay to the Driver fees up to a maximum of the amount nominated in the Schedule, into the bank account nominated in the Schedule and in the manner described in the Schedule. Driver is solely responsible for the declaration or payment of any earnings received under the Agreement and acknowledges that he/she provides the Services in the Driver’s capacity as a self-employed individual and not an employee of Marketing on Wheels or the Advertiser.
9. CONFIDENTIALITY AND PRIVACY
9.1. Information provided and acquired by Marketing on Wheels under this Agreement will not be disclosed by Marketing on Wheels to other parties except as required or allowed for by law, or with the Driver’s express consent. Such information includes some or all of the following: (a) Driver details (b) Vehicle details (c) Vehicle tracking data
9.2.Marketing on Wheels reserves the right to display photos, videos or other media that we obtain regarding the Vehicle (or any other information that we may request from the Driver, such as testimonials) as Marketing on Wheels and/or the Advertiser see it in the promotion and advertisement of Marketing on Wheels services and the Campaign. Marketing on Wheels will, upon the Driver’s request, obscure or otherwise remove the Vehicle’s registration details in all promotional and advertising materials.
10.1. Driver agrees that he/she will not terminate this Agreement during the Campaign Period
10.2. Driver may give notice of termination for a termination date after the end of the Campaign Period.
10.3. Without affecting any other right available to it, Driver may terminate this Agreement with immediate effect by giving written notice to Marketing on Wheels, if Marketing on Wheels fails to pay any amount due on the due date for payment and remains in default for not less than 28 days after being notified in writing to make such payment;
10.4. Without affecting any other right available to it, either Party may terminate this Agreement with immediate effect by giving written notice to the other Party if the other Party repeatedly breaches any conditions of this Agreement in such a manner as can justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to this Agreement.
10.5. Subject to clause 10.1, without affecting any other right available to it, either Party may terminate this Agreement upon providing one month’s written notice to the other Party.
10.6. This Agreement shall terminate at the end of the Campaign Period, unless otherwise agreed. Upon termination of this Agreement, Driver shall return all Advertisements to Marketing on Wheels or dispose of them upon our instruction.
11. GOVERNING LAW AND JURISDICTION
This agreement is governed by the law of Australia. The parties submit to the non-exclusive jurisdiction of its courts and courts of appeal from them. The parties will not object to the exercise of jurisdiction by those courts on any basis.