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Terms of Use

Drivers

Last Updated: October 15th, 2018

BY USING (THE TERM “USE” WHEN USED HEREIN IN RESPECT OF THE PLATFORM WILL MEAN ACCESS OR USE, AND “USING” WILL HAVE A CORRESPONDING MEANING) THE PLATFORM (AS THAT TERM IS DEFINED BELOW), YOU ACCEPT AND AGREE TO BE BOUND BY AND COMPLY WITH THESE TERMS OF USE, AS UPDATED FROM TIME TO TIME IN ACCORDANCE WITH THE SECTION BELOW TITLED “CHANGES TO THESE TERMS OF USE AND PLATFORM”. IF YOU DO NOT ACCEPT AND AGREE TO BE BOUND BY THESE TERMS OF USE, PLEASE DO NOT USE THE PLATFORM. IF YOU ARE USING THE PLATFORM ON BEHALF OF ANOTHER PERSON OR A CORPORATE ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND SUCH PERSON OR ENTITY TO THESE TERMS OF USE.

The following terms of use (the “Terms of Use“) govern your use of: (1) the Tolle Inc. website located at https://tolleapp.com (the “Website”), (2) the mobile device software provided by us to you through the Apple App Store or Google Play, as applicable, to facilitate the matching of persons offering services (each, a “Driver”) and Customers (as defined below) (the “Application”), and (3) all other services provided by Tolle Inc., as described on the Website or the Application (collectively, the “Platform”). These Terms of Use form an agreement between Tolle Inc. (“Tolle“, “us”, “we”, “our”) and you. The term “you” refers to the person or entity visiting, browsing or otherwise using the Platform, or communicating with one or more other person or entities (each such other person or entity, a “Customer”) that is using the Platform for the purpose of finding a Driver to perform transportation services as Driver and Customer may agree between themselves in each case (each, a “Moving Engagement”).

The Platform is provided solely to: (1) assist you in gathering information about the various types of Moving Engagement opportunities and Customers available on the Platform, including, if applicable and without limitation, profiles and Moving Engagement descriptions (each, a “User Profile”); (2) enable you to post information regarding yourself and to respond to any Moving Engagement opportunities; (3) rate Customers; and (4) facilitate communication with Customers with the objective of entering into a Moving Agreement (as defined below) solely for the purpose of engaging in carpooling activities (the “Platform Services”).

Changes to these Terms of Use and Platform

Except where prohibited by applicable law, Tolle reserves the right to change these Terms of Use at any time without notice. Your continued use of the Platform after any changes to these Terms of Use indicates your acceptance of such changes. It is your responsibility to review these Terms of Use regularly for any changes.

Tolle reserves the right to change any information, material or content (including, but not limited to, details, features and availability of Platform Services, Customers, Customer Profiles, Moving Engagements, and reviews of Moving Engagements) contained on or provided through the Platform (the “Content“) at any time, and from time to time, without notice.

Use of the Platform

As a condition of your use of the Platform, you warrant that: (1) you have reached the age of majority in your jurisdiction of residence; (2) you possess the legal authority to create a binding legal obligation; (3) you will use the Platform in accordance with these Terms of Use; (4) all information supplied by you on the Platform is true, accurate, current and complete; (5) you will provide each Moving Engagement in accordance with applicable law (including any laws and regulations related to operation of a vehicle for commercial purposes, as applicable); and (6) you meet all of the driver requirements described below.

Tolle retains the right, at its sole discretion, to deny to anyone use of the Platform or the services it offers, at any time and for any reason, including, but not limited to, for violation of these Terms of Use. You will cease and desist from any such use immediately upon request by Tolle.

License Grants

Subject to these Terms of Use, Tolle grants you a personal, revocable, non-exclusive and non-transferable license during the Term to permit you to access and use the Platform in accordance with these Terms of Use for the Platform Services only.

User Account

You will be required to successfully register for a user account (the “User Account”) using the available interfaces at the Platform, including without limitation, by signing into the Platform using your User Account from a third party social media platform (“User ID”) in order to use the Platform and communicate with Customers through the Platform. Tolle may, at its sole discretion, elect not to recognize your User ID, require you to provide additional information, or confirm that you are in good standing and have the authorizations and licenses required to perform services. You will keep your User ID secure and will not share your User ID with anyone else, and you will not collect or harvest any personal data of any other user of Tolle, including without limitation account names. Tolle reserves the right to disable any User Account issued to you at any time in Tolle’s sole discretion. If Tolle disables access to a User Account issued to you, you may be prevented from accessing the Platform Services, your account details or any Moving Engagements that are associated with your account.

Term and Termination

These Terms of Use will commence on the day you first use the Platform and will continue into force until terminated by either party (the “Term”). Either party may terminate these Terms of Use as follows: (1) Tolle may terminate these Terms of Use at any time and with immediate effect by giving notice to you, at Tolle’s discretion, by email (at your current email address on file with Tolle) or through the Platform; (2) you may terminate these Terms of Use at any time and with immediate effect by requesting (by email or through any then-available interfaces on the Platform) that your User Account be deleted, ceasing use of the Platform, and uninstalling and removing all local software components thereof.

Driver Requirements

As a Driver, you are an independent contractor and not an employee or agent of Tolle. You agree that you will not represent to any person that you have an employment or agency relationship with Tolle.

In order to sign up as a Driver, you acknowledge that you:

(a)               are at least 18 years of age;

(a)               are able to lift at minimum 60 pounds;

(b)               possess a valid provincial driver’s licence for the appropriate class of vehicle; and

(c)               possess a vehicle that meets the provincial safety standards and motor vehicle requirements for a vehicle of its kind, which, in Calgary, includes the following minimum requirements:

(i)                 4-door vehicle with independently opening doors;

(ii)              truck or trailer-style vehicle (covered or uncovered);

(iii)            five seatbelts;

(iv)             10 years or newer;

(v)               no salvaged, rebuilt or van-type vehicles;

(vi)             no commercial branding;

(vii)          passed a vehicle inspection; and

If you wish to become a Driver and enter into Moving Engagements, you are required to submit a complete and truthful driver application.

Each Driver must provide the following documentation:

(a)               a copy of a valid Alberta driver’s license;

(b)               proof of work eligibility;

(c)               proof of Class 1-55 Vehicle Registration or other vehicle registration if driving outside of Calgary;

(d)               A certificate evidencing proof of eligible insurance, including:

(i)                 a certificate for automobile insurance policy coverage evidencing a limit of no less than CDN$[2,000,000] under Section A, Third Party Liability, .issued in the province where the vehicle is registered. If the automobile insurance policy is not issued in the  Driver’s name, the Driver must provide satisfactory evidence that the Driver is covered under the policy for the full limits of the policy and for  the use of the vehicle stipulated under the policy;

(ii)              motor truck cargo insurance of no less than [$5,000 amounts and maximum deductibles to be $500; and

(iii)            commercial general liability insurance coverage with a limit of no less than CDN$[2,000,000] per occurrence, and in the aggregate per policy term, and with a deductible for property damage of no more than CDN$[2,500];

(e)               Proof of an acceptable driving record evidencing the following minimum requirements for each driver  over a three year period:

(i)                 no more than three (3) convictions of a minor or intermediate nature (three (3) demerit points or less);

(ii)              no convictions of a major nature, including but not limited to, impaired driving, vehicular manslaughter, careless driving, [Note to Tolle: Tolle to confirm this note with insurance provider and check legislation for exact conviction under new “HTA” Major: distracted driving, false statement of insurance, failure to follow restrictions in a school zone or improper passing zone, failing to report an accident, failure to report damage to highway property, failure to stop for an emergency vehicle, ailing to stop or improper passing at a school bus, producing false evidence of license or insurance, speeding in a construction zone, violation of license conditions (non-alcohol). Criminal: careless or dangerous driving, criminal negligence, driving impaired (blood alcohol level over 0.08 in Ontario), driving while under suspension, failing to obey police, failing to remain at an accident scene, motor manslaughter, operating a motor vehicle without insurance, racing, speeding 50 km over posted speed limit (or set limit in your province), refusing a breathalyzer test, stunting/drag racing, violation of license conditions (alcohol-related)];

(f)                a profile photo and photo of the Driver’s vehicle.

Each Driver applicant agrees that by applying he or she is consenting to an initial driving abstract check (conducted by a third party chosen by Tolle) and criminal background check (conducted by Sterling Talent Solutions or such other provider designated by Tolle from time to time) and any periodic checks thereafter. Drivers must supply bank account information and their SIN number to establish automated payout. This information is not stored in any way shape or form on the Application.

Moving Agreements with Customer

If you wish to use the Platform to provide Moving Engagements, you may be required to provide a valid bank account information to our third party payment processor. All disputes regarding payments to you are between you, the applicable Customer and such third party payment processor and Tolle will in no way be responsible for the resolution of any such disputed payments.

If you choose to accept a Moving Engagement and agree to provide such Moving Engagement, you may separately enter into an agreement with that Customer on such terms and conditions as may be agreed to between you and that Customer (“Moving Agreement”).

You understand that you are engaging directly with the Customer that selects you and not Tolle, and that Tolle is not a party to and will be in no way responsible for the performance of either you or the Customer under any Moving Agreement. Tolle does not make any representations or warranties of any kind in respect of a Customer or a Moving Agreement and you acknowledge that Tolle is not an agent or representative of you or any Customer. You also agree to act in good faith when negotiating and performing your obligations under each Moving Agreement.

If you fail to provide a Moving Engagement that you have chosen to provide or fail to perform your obligations under a Moving Agreement, Tolle at its sole discretion may suspend your User Account or prevent you from using the Platform.

YOU ACKNOWLEDGE THAT TOLLE DOES NOT PROVIDE TRANSPORTATION OR LOGISTICS SERVICES OR ACT AS A TRANSPORTATION CARRIER AND ALL TRANSPORTATION OR LOGISTICS SERVICES ARE PROVIDED BY INDEPENDENT THIRD PARTY CONTRACTORS.

Driver Representations and Warranties

Each Driver represents and warrants the following:

(a)               Driver acknowledges and accepts that:

(i)                 Driver will be solely responsible for any and all liability which results from or is alleged as a result of the operation of the vehicle during the Moving Engagement, including personal injuries, death and property damage;

(ii)              Driver will be solely responsible for any violations of applicable laws or any fines that may occur; and

(iii)            in the event of a motor vehicle accident, Driver will be solely responsible for compliance with any applicable statutory or department of motor vehicles requirements, and for all necessary contacts with such Driver’s insurance carrier;

(b)               Driver will only use the vehicle that has listed under its User Account;

(c)               Driver will not permit Customers inside the Driver’s vehicle at any point during the Moving Engagement;

(d)               Driver will not delegate or subcontract the Moving Engagement or any services to be provided in connection with the Moving Engagement;

(e)               Driver will not permit any of the following to be stored or carried inside of the their vehicle during the Moving Engagement (the “Moving Items”) including, but not limited to:

(i)                 Dangerous or hazardous materials, including explosive or flammable goods;

(ii)              Goods of special or high value including cash in excess of CDN$500.00, jewelry, laptops or other luxury goods;

(iii)            Sensitive equipment that requires specialized packaging; or

(iv)             Live animals of any variety; or

(v)               Collective goods having a total value of CDN$10,000 or more, and

(f)                Driver has read, understands and agrees to comply with the requirements under the Alberta Transportation “Commercial Vehicle Safety Compliance in Alberta” manual: http://www.transportation.alberta.ca/Content/docType276/Production/Edmanual.pdf and the Canada National Safety Code.

Payment Fees

Please review the fee information and payment terms and conditions available here: [https://tolleapp.com/pricing (customers) https://tolleapp.com/driver-payment (drivers)] (the “Tolle Payment Terms”).

You agree that you will be paid in accordance with, and be responsible for any applicable charges set out in, the Tolle Payment Terms (as updated by Tolle from time to time) in respect of your Moving Engagements and Moving Agreements.

Moving Engagement

The Moving Engagement includes 10 minutes of loading and unloading time at the start and end locations provided by the Customer. Drivers will provide reasonable assistance to Customers in handling Moving Items in order to move them in and out of the moving vehicle and will be provided with additional instructions about the Moving Engagement after the Moving Engagement has been accepted. Drivers are not required, however, to provide any assistance with assembling or disassembling furniture or other Moving Items or packing Moving Items. Customers will be expected to have all Moving Items ready to move into the truck upon arrival by the Driver at the starting location at the time the Moving Engagement commences. Any time spent moving the Moving Items into or out of the moving vehicle beyond the 10 minutes included in the Fees will be subject to the Variable Fee as set out on the Tolle Payment Terms.

The fees and charges set forth in the Tolle Payment Terms to not include any payment processing fees assessed by our third party payment processors for which you will be solely responsible. By using the Platform Services, you authorize our third party payment processors to deduct and send directly to us any amounts owed to us pursuant to these Terms of Use. Third party payment processors are not subcontractors or agents of Tolle and any disputes between you and a Customer regarding any payments or lack thereof are between you, such Customer and the third party payment processor, as applicable. We and our third party payment processors are not responsible for the transmission or processing of any payments you make or receive pursuant to your use of the Platform Services. Your use of the payment services provided by our third party payment processors may be subject to additional terms and conditions made available to you by such payment processors.

Reviews and Comments

By submitting content to the Platform or Tolle, including without limitation any Customer or Moving Engagement reviews, questions, comments, suggestions, ideas or similar information (collectively, “Submissions”), you grant Tolle and its affiliates, a worldwide, nonexclusive, royalty-free, perpetual, transferable, irrevocable and fully sublicensable right and license to (1) use, reproduce, modify, adapt, translate, distribute, publish, exploit, create adaptions or derivative works from and publicly display and perform such Submissions throughout the world in any media, now known or hereafter devised; and (2) use the name that you submit in connection with such Submission. You acknowledge that Tolle may choose to provide attribution of your Submissions (e.g., listing your name and city on a Customer or Moving Engagement review that you submit) at our discretion, and that such Submissions may be used by Tolle or shared with Customer and others using our Platform without notice to you. You further grant Tolle the right to pursue at law any person or entity that violates your or Tolle’s rights in the Submissions by a breach of these Terms of Use. You acknowledge and agree that Submissions are non-confidential to you.

Tolle takes no responsibility and assumes no liability for any Submissions posted or submitted by you. Tolle has no obligation to post your Submissions and reserves the right, in its absolute discretion, to determine which Submissions are published on the Platform. If you do not agree to the terms relating to Submissions in this Section, do not provide us with any Submissions.

You are fully responsible for the content of your Submissions, specifically including, but not limited to, reviews posted to the Platform. Tolle may take down any Submissions for any reason at any time without notice to you.

You will not post or transmit to or from the Platform: (a) any unlawful, threatening, libelous, defamatory, obscene, pornographic, or other material or content that would violate rights of publicity or privacy, or that would violate any applicable law; (b) any commercial material or content (including, but not limited to, solicitation of funds, advertising, or marketing of any good or services); and (c) any material or content that infringes, misappropriates or violates any copyright, trademark, patent right or other intellectual property or proprietary right of any third party. You will be solely liable for any damages resulting from any violation of the foregoing restrictions, or any other harm resulting from your posting of content to the Platform.

Ownership

Tolle expressly reserves all rights in the Platform and all materials provided by Tolle in connection with these Terms of Use that are not specifically granted to you. You acknowledge that all right, title and interest (including all intellectual property rights) in and to the Platform, all materials provided by Tolle in connection with these Terms of Use (including the Content), and any update, adaptation, translation, customization or derivative work thereof, will remain with Tolle (or its third party suppliers, if applicable), and that the Platform and all materials provided by Tolle hereunder are licensed and not “sold” to you.

No Unlawful or Prohibited Use

You will not, without Tolle’s prior written permission, use the Platform and the Content for purposes other than the Platform Services. Without limiting the generality of the foregoing, you will not, and will not permit anyone else to: (1) “frame”, “mirror” or otherwise incorporate the Platform or the Content or any part thereof on any website; (2) access, monitor or copy any part of the Platform or the Content using any robot, spider, scraper or other automated means or any manual process for any purpose without our express written permission; (3) violate the restrictions in any robot exclusion headers on the Content or the Platform or bypass or circumvent other measures employed to prevent or limit access to the Platform; (4) take any action that imposes, or may impose, in Tolle’s discretion, an unreasonable or disproportionately large load on the Platform; (5) deep-link to any portion of the Platform for any purpose; (6) remove (or permit anyone else to remove) any watermarks, labels or other legal or proprietary notices included in any Moving Engagement, the Platform or the Content; (7) modify or attempt to modify (or permit anyone else to modify or attempt to modify) the Platform or any Moving Engagements, including without limitation any modification for the purpose of disguising or changing any indications of the ownership or source of the Platform or a Moving Engagement (8) use the Platform or any Moving Engagement or Content as part of any service for sharing, lending or multi-person use, or for the purpose of any other institution, except as specifically permitted by an applicable Moving Agreement and only in the exact manner specified and enabled by therein; (9) attempt to, assist, authorise or encourage others to circumvent, disable or defeat any of the security features or components, such as digital rights management software or encryption, that protect the Platform; (10) copy, reproduce, modify, distribute, transfer, sell, publish, broadcast, perform, transmit, publish, license or circulate in any form any part of the Platform or the Content; (11) create adaptations, translations, or derivative works based on the Platform or the Content, in whole or in part, or decompile, disassemble, reverse engineer or other exploit any part of the Platform or the Content; (12) use of access the Platform in a manner that violates the rights (including, but not limited to intellectual property rights) of any third party; or (13) upload to or transmit through the Platform any information, images, text, data, media or other content that is offensive, hateful, obscene, defamatory or violates any laws, in each case as determined by Tolle in its sole discretion.

Third Party Websites

The Platform may provide links to third party websites. Tolle does not endorse the information contained on those web sites or guarantee their quality, accuracy, reliability, completeness, currency, timeliness, non-infringement, merchantability or fitness for any purpose. The content in any linked web site is not under Tolle’s control, and if you choose to access any such web site, you do so entirely at your own risk.

Viruses

The downloading and viewing of Content is done at your own risk. Tolle cannot and does not guarantee or warrant that the Platform or the Content are compatible with your computer system or that the Platform or the Content, or any links from the Platform or the Content, will be free of viruses, worms, trojan horses or disabling devices or other code that manifests contaminating or destructive properties. You are responsible for implementing safeguards to protect the security and integrity of your computer system, and you are responsible for the entire cost of any service, repairs or connections of and to your computer system that may be necessary as a result of your use of the Platform.

Communications Not Confidential

Tolle does not guarantee the confidentiality of any communications made by you through the Platform. Although Tolle generally adheres to the accepted industry practices in securing the transmission of data to, from and through the Platform, you understand, agree and acknowledge that Tolle cannot and does not guarantee the security of data transmitted over the Internet or public networks in connection with your use of the Platform or any Moving Engagements.

DISCLAIMER AND LIMITATION OF LIABILITY

THE PLATFORM AND THE CONTENT ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT REPRESENTATIONS, WARRANTIES AND CONDITIONS OF ANY KIND. USE OF THE PLATFORM OR THE CONTENT IS AT YOUR OWN RISK. TOLLE DOES NOT MAKE ANY REPRESENTATIONS, WARRANTIES OR CONDITIONS ABOUT THE QUALITY, ACCURACY, RELIABILITY, COMPLETENESS, CURRENCY, OR TIMELINESS OF THE PLATFORM OR THE CONTENT. THE PLATFORM AND THE CONTENT MAY INCLUDE ERRORS, OMISSIONS AND INACCURACIES, INCLUDING, WITHOUT LIMITATION, PRICING ERRORS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TOLLE DOES NOT ASSUME ANY RESPONSIBILITY FOR ANY ERRORS, OMISSIONS OR INACCURACIES IN THE PLATFORM OR THE CONTENT. IN ADDITION, TOLLE EXPRESSLY RESERVES THE RIGHT TO CORRECT ANY PRICING ERRORS ON THE PLATFORM.

MOVING ENGAGEMENT REVIEWS DISPLAYED ON THE SITE ARE INTENDED AS ONLY GENERAL GUIDELINES, AND TOLLE DOES NOT GUARANTEE THE ACCURACY OF THE REVIEWS. TOLLE MAKES NO GUARANTEES ABOUT SPECIFIC OPPORTUNITIES OR CUSTOMERS. WITHOUT LIMITING THE FOREGOING, TOLLE MAKES NO GUARANTEES ABOUT ANY CUSTOMER’S ABILITY TO FULFILL ITS OBLIGATIONS WITH RESPECT TO A MOVING ENGAGEMENT OR MOVING AGREEMENT, INCLUDING, WITHOUT LIMITATION, A CUSTOMER’S ABILITY TO PROVIDE PAYMENT IN A TIMELY MANNER.

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, TOLLE DISCLAIMS ALL WARRANTIES, REPRESENTATIONS AND CONDITIONS OF ANY KIND WITH RESPECT TO THE PLATFORM (OR ANY PART THEREOF) AND THE CONTENT (OR ANY PART THEREOF) WHETHER EXPRESS, IMPLIED, STATUTORY OR COLLATERAL, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE, OR THAT THE PLATFORM OR THE CONTENT ARE OR WILL BE ERROR-FREE OR WILL OPERATE WITHOUT INTERRUPTION.

IN NO EVENT WILL TOLLE BE LIABLE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER LEGAL THEORY, FOR ANY DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, LOST PROFITS, LOSS OF USE, LOSS OF DATA, PERSONAL INJURY, FINES, FEES, PENALTIES OR OTHER LIABILITIES), WHETHER OR NOT TOLLE IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, RESULTING FROM OR RELATED TO THE USE OF, OR THE INABILITY TO MAKE USE OF, THE PLATFORM OR THE CONTENT OR ANY MOVING AGREEMENT.

CUSTOMERS ENGAGING YOUR SERVICES THROUGH THE PLATFORM ARE INDEPENDENT PERSONS AND NOT CONTRACTORS, AGENTS OR EMPLOYEES OF TOLLE. TOLLE IS NOT LIABLE FOR THE ACTS, ERRORS, OMISSIONS, REPRESENTATIONS, WARRANTIES, CONDITIONS, BREACHES OR NEGLIGENCE OF ANY CUSTOMER OR FOR ANY PERSONAL INJURIES, DEATH, PROPERTY DAMAGE, OR OTHER DAMAGES OR EXPENSES RESULTING THEREFROM AND TAKES NO RESPONSIBILITY WHATSOEVER RELATED TO ANY MOVING ENGAGEMENTS OR MOVING AGREEMENTS ENTERED INTO BY YOU AND ANY CUSTOMERS, INCLUDING, WITHOUT LIMITATION, IN RESPECT OF ANY LIABILITIES, CLAIMS, CAUSES OF ACTION, DEMANDS, RECOVERIES, LOSSES, DAMAGES, FINES, PENALTIES, OR OTHER COSTS OR EXPENSES YOU MAY INCUR OR BECOME ENTITLED TO, WHETHER UNDER CONTRACT, COMMON LAW, STATUTE OR OTHERWISE, ASSOCIATED WITH THE TERMINATION OR CESSATION OF ANY MOVING ENGAGEMENTS OR MOVING AGREEMENTS FOR ANY REASON (COLLECTIVELY, “TERMINATION DAMAGES”). YOU AGREE TO RELEASE TOLLE AND HOLD US HARMLESS FROM ANY DAMAGES (INCLUDING TERMINATION DAMAGES) THAT ANY CUSTOMER OR OTHER THIRD PARTY MAY BECOME ENTITLED TO IN RESPECT OF ANY MOVING ENGAGEMENT OR MOVING AGREEMENT.

THE FOREGOING LIMITATION APPLIES TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. TO THE EXTENT THAT THE FOREGOING LIMITATION DOES NOT APPLY, IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF TOLLE IN CONNECTION WITH OR UNDER THESE TERMS OF USE, INCLUDING FROM A MOVING AGREEMENT, OR YOUR USE OF, OR INABILITY TO MAKE USE OF, THE PLATFORM OR THE CONTENT, OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO A MOVING AGREEMENT, OR YOUR USE OF, OR INABILITY TO MAKE USE OF, THE PLATFORM OR THE CONTENT EXCEED THE FEES PAID OR PAYABLE TO YOU BY TOLLE IN THE 12 MONTHS PRECEDING THE DATE THAT THE LIABILITY AROSE. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THESE TERMS OF USE WILL NOT INCREASE THE MAXIMUM LIABILITY AMOUNT.

The limitation above reflects the allocation of risk between the parties. The limitations specified in this section will survive and apply even if any limited remedy specified in these terms is found to have failed of its essential purpose.

Indemnification

You will defend, indemnify and hold harmless Tolle and all of its officers, directors, affiliates, successors, assigns, contractors, employees and agents from and against any liabilities, claims, causes of action, demands, recoveries, losses, damages, fines, penalties or other costs or expenses of any kind or nature including but not limited to reasonable legal and accounting fees, brought in connection with or as a result of any of the following:

(1) your breach of any of your warranties, conditions, representations or obligations under these Terms of Use or any documents referenced herein;

(2) your violation of any applicable law (including, without limitation, any law, regulation or order related to transportation or public safety) or the rights of a third party (including, without limitation, privacy or intellectual property rights);

(3) your use of the Platform;

(4) breach of or failure to perform under any Moving Agreement by you or by any third party acting on your behalf or with your permission;

(5) any misrepresentations made to Customers by you in connection with any Moving Engagement or Moving Agreement; or

(6) the performance of the Moving Engagements or in connection with the Terms of Use, including in respect of any liability imposed by law with respect to any injuries, death or damage resulting from, arising out of, and accruing in the course of the performance of the Moving Engagements or in connection with the Terms of Use.

Liability

The Moving Engagements to be performed under these Terms of Use will be performed entirely at the Driver’s risk. Without limiting the generality of the foregoing, the Driver agrees to assume and bear the entire risk, responsibility and liability:

(1) for injuries or death of the Driver or damage to the Driver’s property resulting from, arising out of, and accruing in the course of the performance of the Moving Engagements or in connection with the Terms of Use; and

(2) for injuries or death of third parties or damage to the property of third parties resulting from, arising out of, and accruing in the course of the performance of the Moving Engagements or in connection with the Terms of Use to the extent that such injuries, death or damage were the result of the negligence, willful or malicious act of the Driver.

Geographic Application of the Platform

Not all of the Customers, Moving Engagements and services described on the Platform are available in all jurisdictions. Furthermore, nothing on the Platform constitutes an offer or solicitation to buy or sell any product or service to anyone in any jurisdiction in which such an offer or solicitation is prohibited by applicable law.

Governing Law and Jurisdiction

These Terms of Use will be governed by the laws of the Province of Alberta and the federal laws of Canada applicable therein. These laws apply to your use of the Platform or the Content, notwithstanding your domicile, residency or physical location. The Platform and the Content are intended for use only in jurisdictions where they may lawfully be offered for use.

Arbitration

Except where prohibited by law, any controversy, claim or dispute arising out of, relating to, or in respect of these Terms of Use, including their negotiation, validity, existence, breach, termination, construction or application, or the rights, duties or obligations of any party, or the rights, duties or obligations of any party derived from or associated with these Terms of Use (a “Dispute”), shall be referred to and determined by a single arbitrator in a final and binding arbitration administered under the rules of ADR Institute of Canada, Inc.’s Arbitration Rules. If the parties have not agreed upon an arbitrator within 14 days, unless otherwise agreed by the parties in writing, the parties shall ask the ADR Institute of Canada, Inc. to appoint a single arbitrator. By so agreeing, you waive any right you may have to commence or participate in any class action against Tolle related to any Dispute and, where applicable, you hereby agree to opt out of any class proceeding against Tolle otherwise commenced.

The seat of the arbitration shall be the same as the provincial or territorial law governing these Terms of Use. The arbitration shall be heard in the capital of the seat, unless the parties agree otherwise. The costs and expenses of the arbitrator shall be shared equally between the parties. A party to the arbitration has no right of appeal from any award of the Arbitrator, whether characterized as final, interim, interlocutory or partial.

All Disputes referred to arbitration (including the scope of the agreement to arbitrate, the law relating to the enforcement of the agreement to arbitrate, any relevant limitation periods, the law governing the procedure of the arbitration, the law relating to available remedies, set-off claims and conflict of laws rules) shall be governed by the law of the seat. Each party hereby irrevocably consents to venue in the capital of the seat, and to the jurisdiction of competent courts in the capital of the seat for all litigation that may be brought, however it is agreed and acknowledged that the intention of the parties is to arbitrate the Dispute without recourse to the courts.

A party to these Terms of Use may take such steps as are permitted or required to enforce an award made by an Arbitrator. Except as required by law, and only to the extent that such disclosure is reasonably necessary, or for the purposes of obtaining professional advice, the existence of the arbitration and any element of the arbitration, including any award, shall be confidential and shall not be disclosed to any non-party to the arbitration. No document or other evidence or information prepared for or produced by or on behalf of any party to the arbitration shall be disclosed to any non-party to the arbitration.

Entire Agreement, Waiver and Severability

These Terms of Use constitute the entire agreement between Tolle and you pertaining to the subject matter hereof and supersede all prior or contemporaneous communications and proposals, whether electronic, oral or written, between you and Tolle with respect to the Platform. A printed version of these Terms of Use and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to these Terms of Use to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.

Tolle’s failure to insist upon or enforce strict performance of any provision of these Terms of Use will not be construed as a waiver of any provisions or right. Any waiver by Tolle of a right or a provision hereof must be provided by Tolle in writing.

If any of the provisions contained in these Terms of Use are determined to be void, invalid or otherwise unenforceable by a court of competent jurisdiction, such determination will not affect the remaining provisions contained herein.

If any of the provisions contained in these Terms of Use conflict with the terms of another agreement between the parties (such as the terms of a Moving Agreement in respect of a Moving Engagement), then these Terms of Use will prevail; provided that, if you are also a Customer registered on the Platform, the terms of use applicable to Customer will govern your relationship with Tolle in that respect.

It is the express wish of the parties that these Terms of Use and all related documents be drawn up in English. C’est la volonté expresse des parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.

Apple App Store Additional License Terms

If the Application is provided to you through the Apple Inc. (Apple Inc. together with all of its affiliates, “Apple”) App Store, the following terms and conditions apply to you in addition to all the other terms and conditions of this Terms of Use:

The parties acknowledge this Terms of Use is concluded between you and us, and not with Apple. The responsibility for the Application and content thereof is governed by this Terms of Use.

Notwithstanding anything else in this Terms of Use, you may use the Application only on an iPhone or iPod touch that you own or control.

You and we acknowledge that Apple has no obligation to furnish any maintenance or support services with respect to the Application.

In the event of any failure of the Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Application (if any) to you. Except for the foregoing, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Application, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be governed by this Terms of Use.

Any claim in connection with the Application related to product liability, a failure to conform to applicable legal or regulatory requirements, claims under consumer protection or similar legislation is governed by this Terms of Use, and Apple is not responsible for such claim.

Any third party claim that the Application or your possession and use of the Application infringes that third party’s intellectual property rights will be governed by this Terms of Use, and Apple will not be responsible for the investigation, defense, settlement and discharge of such intellectual property infringement claim.

You represent and warrant that you are not: (i) located in any country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; or (ii) listed on any U.S. Government list of prohibited or restricted parties.

You may contact us in writing regarding any notices, questions, complaints, or claims with respect to the Application.

Name: Jazmyn Rusnack
Telephone Number: 587-228-9353
Email Address: support@tolleapp.com

Apple are a third party beneficiaries to this Terms of Use and may enforce this Terms of Use against you.

If any of the terms and conditions in this Terms of Use are inconsistent or in conflict with Apple’s applicable instructions for Minimum Terms for Developer’s End User License Agreement or the App Store Terms of Service as of the Effective Date, the terms and conditions of Apple’s instructions for Minimum Terms for Developer’s End User License Agreement or App Store Terms of Service, as applicable, will apply to the extent of such inconsistency or conflict.

Google Play

 

If the Application is provided to you through the Google Inc. (Google Inc. together with all of its affiliates, “Google”) Google Play, the following terms and conditions apply to you in addition to all the other terms and conditions of this Terms of Use: (a) You acknowledge that Google is not responsible for providing support services for the Application; and (b) if any of the terms and conditions in this Terms of Use are inconsistent or in conflict with Google’s Google Play Developer Distribution Agreement as of the date this Terms of Use was accepted, the terms and conditions of Google’s Google Play Developer Distribution Agreement will apply to the extent of such inconsistency or conflict.

Customer

Last Updated: October 15th, 2018

BY USING (THE TERM “USE” WHEN USED HEREIN IN RESPECT OF THE PLATFORM WILL MEAN ACCESS OR USE, AND “USING” WILL HAVE A CORRESPONDING MEANING) THE PLATFORM (AS THAT TERM IS DEFINED BELOW), YOU ACCEPT AND AGREE TO BE BOUND BY AND COMPLY WITH THESE TERMS OF USE, AS UPDATED FROM TIME TO TIME IN ACCORDANCE WITH THE SECTION BELOW TITLED “CHANGES TO THESE TERMS OF USE AND PLATFORM”. IF YOU DO NOT ACCEPT AND AGREE TO BE BOUND BY THESE TERMS OF USE, PLEASE DO NOT USE THE PLATFORM. IF YOU ARE USING THE PLATFORM ON BEHALF OF ANOTHER PERSON OR A CORPORATE ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND SUCH PERSON OR ENTITY TO THESE TERMS OF USE.

The following terms of use (the “Terms of Use”) govern your use of: (1) the Tolle Inc. website located at https://tolleapp.com (the “Website”), (2) any mobile device software provided by us to you through the Apple App Store or Google Play, as applicable, to facilitate the matching of Drivers (as defined below) and other users (each, a “Customer”) interested in retaining a Driver to perform services (the “Application”); and (3) all other services provided by Tolle Inc., as described on the Website or the Application (collectively, the “Platform”). These Terms of Use form an agreement between Tolle Inc. (“Tolle“, “us”, “we”, “our”) and you. The term “you” refers to the person or entity visiting, browsing or otherwise using the Platform, or communicating with drivers registered with Tolle (each such driver, a “Driver”), in each case for the purpose of finding a Driver to provide transportation services as Driver and Passenger may agree between themselves in each case (each, a “Moving Engagement”).

The Platform is provided solely to: (1) assist you in gathering information about the various Moving Engagement opportunities and Drivers available on the Platform, including, if applicable and without limitation, profiles and reviews of Drivers (each, a “Driver Profile”); (2) enable you to post information regarding yourself and your Moving Engagement requests; (3) post reviews of Drivers; and (4) facilitate communication with Drivers with the objective of entering into a Moving Agreement (as defined below) solely for the purpose of engaging in activities related to moving services (“Platform Services”).

Changes to these Terms of Use and Platform

Except where prohibited by applicable law, Tolle reserves the right to change these Terms of Use at any time without notice. Your continued use of the Platform after any changes to these Terms of Use indicates your acceptance of such changes. It is your responsibility to review these Terms of Use regularly for any changes.

Tolle reserves the right to change any information, material or content (including, but not limited to, details, features and availability of Platform Services, Drivers, Driver Profiles, Moving Engagements, and reviews of Moving Engagements and Drivers) contained on or provided through the Platform (the “Content”) at any time, and from time to time, without notice.

Use of the Platform

As a condition of your use of the Platform, you warrant that: (1) you have reached the age of majority in your jurisdiction of residence; (2) you possess the legal authority to create a binding legal obligation on behalf of yourself; (3) you will use the Platform in accordance with these Terms of Use; (4) all information supplied by you on the Platform is true, accurate, current and complete; and (5) you will use the Platform Services only in accordance with applicable law.

Tolle retains the right, at its sole discretion, to deny to anyone use of the Platform or the services it offers, at any time and for any reason, including, but not limited to, for violation of these Terms of Use. You will cease and desist from any such use immediately upon request by Tolle.

License Grants

Subject to these Terms of Use, Tolle grants you a personal, revocable, non-exclusive and non-transferable license during the Term to permit you to access and use the Platform in accordance with these Terms of Use for the Platform Services only.

User Account

You will be required to successfully register for a user account (the “User Account”) using the available interfaces at the Platform, including without limitation, by signing into the Platform using your user account from a third party social media platform (“User ID”) in order to use the Platform and communicate with Drivers through the Platform. Tolle may, at its sole discretion, elect not to recognize your User ID or require you to provide additional information. You will keep your User ID secure and will not share your User ID with anyone else, and you will not collect or harvest any personal data of any other user of Tolle, including without limitation account names. Tolle reserves the right to disable any User Account issued to you at any time in Tolle’s sole discretion. If Tolle disables access to a User Account issued to you, you may be prevented from accessing the Platform Services, your account details or any Moving Engagements that are associated with your account.

Term and Termination

These Terms of Use will commence on the day you first use the Platform and will continue into force until terminated by either party (the “Term”). Either party may terminate these Terms of Use as follows: (1) Tolle may terminate these Terms of Use at any time and with immediate effect by giving notice to you, at Tolle’s discretion, by email (at your current email address on file with Tolle) or through the Platform; (2) you may terminate these Terms of Use at any time and with immediate effect by requesting (by email or through any then-available interfaces on the Platform) that your User Account be deleted, ceasing use of the Platform, and uninstalling and removing all local software components thereof.

Moving Agreements with Drivers

If you wish to request a Moving Engagement on the Platform, you may be required to provide a valid credit or debit card to our third party payment processor. All disputes regarding charges to your credit or debit card are between you, the applicable Driver and such third party payment processor and Tolle will in no way be responsible for the resolution of any such disputed charges.

If you select a Driver for a Moving Engagement through the Platform, you may separately enter into an agreement with that Driver on such terms and conditions as may be agreed to between you and that Driver (“Moving Agreement”).

You understand that you are engaging directly with the Driver you select and not Tolle, and that Tolle is not a party to and will be in no way responsible for the performance of either you or the Driver under any Moving Agreement. Without limiting the foregoing, you understand and agree that the Driver will not be an employee of Tolle. Tolle does not make any representations or warranties of any kind in respect of a Driver or a Moving Agreement and you acknowledge that Tolle is not an agent or representative of you or any Driver. You are responsible for managing, inspecting, accepting and paying for services provided under a Moving Agreement in accordance with the terms and conditions thereof. You also agree to act in good faith when negotiating and performing your obligations under each Moving Agreement.

If you fail to perform your obligations under the Moving Agreement, Tolle at its sole discretion may suspend your User Account or prevent you from using the Platform.

YOU ACKNOWLEDGE THAT TOLLE DOES NOT PROVIDE TRANSPORTATION OR LOGISTICS SERVICES OR ACT AS A TRANSPORTATION CARRIER AND ALL TRANSPORTATION OR LOGISTICS SERVICES ARE PROVIDED BY INDEPENDENT THIRD PARTY CONTRACTORS.

Customer Representations and Warranties

 

Each Customer represents and warrants the following:

  • Customer will not travel inside the Driver’s vehicle at any point during the Moving Engagement;
  • Customer will not permit any of the following to be packed or transported inside the Driver vehicle during the Moving Engagement (the “Moving Items”) including, but not limited to:
    • Dangerous or hazardous materials, including explosive or flammable goods;
    • Goods of special or high value including cash in excess of CDN$500.00, jewelry, laptops or other luxury goods;
    • Sensitive equipment that requires specialized packaging;
    • Live animals of any variety; or
    • Collective goods having a total value of CDN$10,000 or more.

Payment Fees

Please review the fee information and payment terms and conditions available here: [https://tolleapp.com/pricing] (the “Tolle Payment Terms”).

You agree that you will be responsible for the applicable fees and charges set out in the Tolle Payment Terms (as updated by Tolle from time to time) in respect of your Moving Engagements and Moving Agreements.

The fees and charges set forth in the Tolle Payment Terms to not include any payment processing fees assessed by our third party payment processors for which you will be solely responsible. By using the Platform Services, you authorize our third party payment processors to deduct and send directly to us and to Drivers any amounts owed to us or Drivers, as applicable, pursuant to these Terms of Use. Third party payment processors are not subcontractors or agents of Tolle and any disputes between you and a Passenger regarding any payments or lack thereof are between you, such Passenger and the third party payment processor, as applicable. We and our third party payment processors are not responsible for the transmission or processing of any payments you make or receive pursuant to your use of the Platform Services. Your use of the payment services provided by our third party payment processors may be subject to additional terms and conditions made available to you by such payment processors.

Moving Engagement

The Moving Engagement includes 10 minutes of loading and unloading time at the start and end locations provided by the Customer. Drivers have been instructed to provide reasonable assistance to Customers in handling Moving Items in order to move them in and out of the moving vehicle. Drivers are not required, however, to provide any assistance with assembling or disassembling furniture or other Moving Items, packing Moving Items, or carrying Moving Items up and down stairs or over extended distances. Customers will be expected to have a legal parking spot available for the Driver, pack Moving Items in secure containers, ensure that each such container weighs no more than 60 pounds when packed, have all Moving Items ready to move into the truck upon arrival by the Driver at the starting location at the time the Moving Engagement commences. Any time spent moving the Moving Items into or out of the moving vehicle beyond the 10 minutes included in the Fees will be subject to the Variable Fee as set out on the Tolle Payment Terms.  Customers must provide Drivers with additional instructions about the Moving Engagement when posting the Moving Engagement on the Application.

Repair or Cleaning Fees

You shall be responsible for the cost of repair for damage to, or necessary cleaning of, Driver vehicles and property resulting from use of the Services under your Account in excess of normal “wear and tear” damages and necessary cleaning (“Repair or Cleaning”). In the event that a Driver reports the need for Repair or Cleaning, Tolle reserves the right to facilitate payment for the reasonable cost of such Repair or Cleaning on behalf of the Driver using your payment method designated in your Account. Such amounts will be transferred by Tolle to the applicable Driver and are non-refundable.

Reviews and Comments

By submitting content to the Platform or Tolle, including without limitation any Driver or Moving Engagement reviews, questions, comments, suggestions, ideas or similar information (collectively, “Submissions”), you grant Tolle and its affiliates, a worldwide, nonexclusive, royalty-free, perpetual, transferable, irrevocable and fully sublicensable right and license to (1) use, reproduce, modify, adapt, translate, distribute, publish, exploit, create adaptations and derivative works from and publicly display and perform such Submissions throughout the world in any media, now known or hereafter devised; and (2) use the name that you submit in connection with such Submission. You acknowledge that Tolle may choose to provide attribution of your Submissions (e.g., listing your name and city on a Driver or Moving Engagement review that you submit) at our discretion, and that such Submissions may be used by Tolle or shared with Drivers and others using our Platform without notice to you. You further grant Tolle the right to pursue at law any person or entity that violates your or Tolle’s rights in the Submissions by a breach of these Terms of Use. You acknowledge and agree that Submissions are non-confidential to you.

Tolle takes no responsibility and assumes no liability for any Submissions posted or submitted by you. Tolle has no obligation to post your Submissions and reserves the right, in its absolute discretion to determine which Submissions are published on the Platform. If you do not agree to the terms relating to Submissions in this Section, do not provide us with any Submissions.

You are fully responsible for the content of your Submissions, specifically including, but not limited to, reviews posted to the Platform. Tolle may take down any Submissions for any reason at any time without notice to you.

You will not post or transmit to or from the Platform: (a) any unlawful, threatening, libelous, defamatory, obscene, pornographic, or other material or content that would violate rights of publicity or privacy, or that would violate any applicable law; (b) any commercial material or content (including, but not limited to, solicitation of funds, advertising, or marketing of any good or services); and (c) any material or content that infringes, misappropriates or violates any copyright, trademark, patent right or other intellectual property or proprietary right of any third party. You will be solely liable for any damages resulting from any violation of the foregoing restrictions, or any other harm resulting from your posting of content to the Platform.

Ownership

Tolle expressly reserves all rights in the Platform and all materials provided by Tolle in connection with these Terms of Use that are not specifically granted to you. You acknowledge that all right, title and interest (including all intellectual property rights) in and to the Platform, all materials provided by Tolle in connection with these Terms of Use (including the Content), and any update, adaptation, translation, customization or derivative work thereof, will remain with Tolle (or its third party suppliers, if applicable), and that the Platform and all materials provided by Tolle hereunder are licensed and not “sold” to you.

No Unlawful or Prohibited Use

You will not, without Tolle’s prior written permission, use the Platform and the Content for purposes other than the Platform Services. Without limiting the generality of the foregoing, you will not, and will not permit anyone else to: (1) “frame”, “mirror” or otherwise incorporate the Platform or the Content or any part thereof on any website; (2) access, monitor or copy any part of the Platform or the Content using any robot, spider, scraper or other automated means or any manual process for any purpose without our express written permission; (3) violate the restrictions in any robot exclusion headers on the Content or the Platform or bypass or circumvent other measures employed to prevent or limit access to the Platform; (4) take any action that imposes, or may impose, in Tolle’s discretion, an unreasonable or disproportionately large load on the Platform; (5) deep-link to any portion of the Platform for any purpose; (6) remove (or permit anyone else to remove) any watermarks, labels or other legal or proprietary notices included in any Moving Engagement, the Platform or the Content; (7) modify or attempt to modify (or permit anyone else to modify or attempt to modify) the Platform or any Moving Engagements, including without limitation any modification for the purpose of disguising or changing any indications of the ownership or source of the Platform or a Moving Engagement; (8) use the Platform or any Moving Engagement or Content as part of any service for sharing, lending or multi-person use, or for the purpose of any other institution, except as specifically permitted by an applicable Moving Agreement and only in the exact manner specified and enabled by therein; (9) attempt to, assist, authorise or encourage others to circumvent, disable or defeat any of the security features or components, such as digital rights management software or encryption, that protect the Platform; (10) copy, reproduce, modify, distribute, transfer, sell, publish, broadcast, perform, transmit, publish, license or circulate in any form any part of the Platform or the Content; (11) create adaptations, translations, or derivative works based on the Platform or the Content, in whole or in part, or decompile, disassemble, reverse engineer or other exploit any part of the Platform or the Content; (12) use of access the Platform in a manner that violates the rights (including, but not limited to intellectual property rights) of any third party; or (13) upload to or transmit through the Platform any information, images, text, data, media or other content that is offensive, hateful, obscene, defamatory or violates any laws, in each case as determined by Tolle in its sole discretion.

Third Party Websites

The Platform may provide links to third party websites. Tolle does not endorse the information contained on those web sites or guarantee their quality, accuracy, reliability, completeness, currency, timeliness, non-infringement, merchantability or fitness for any purpose. The content in any linked web site is not under Tolle’s control, and if you choose to access any such web site, you do so entirely at your own risk.

Viruses

The downloading and viewing of Content is done at your own risk. Tolle cannot and does not guarantee or warrant that the Platform or the Content are compatible with your computer system or that the Platform or the Content, or any links from the Platform or the Content, will be free of viruses, worms, Trojan horses or disabling devices or other code that manifests contaminating or destructive properties. You are responsible for implementing safeguards to protect the security and integrity of your computer system, and you are responsible for the entire cost of any service, repairs or connections of and to your computer system that may be necessary as a result of your use of the Platform.

Communications Not Confidential

Tolle does not guarantee the confidentiality of any communications made by you through the Platform. Although Tolle generally adheres to the accepted industry practices in securing the transmission of data to, from and through the Platform, you understand, agree and acknowledge that Tolle cannot and does not guarantee the security of data transmitted over the Internet or public networks in connection with your use of the Platform or any Moving Engagements.

DISCLAIMER AND LIMITATION OF LIABILITY

THE PLATFORM AND THE CONTENT ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT REPRESENTATIONS, WARRANTIES, AND CONDITIONS OF ANY KIND. USE OF THE PLATFORM OR THE CONTENT IS AT YOUR OWN RISK. TOLLE DOES NOT MAKE ANY REPRESENTATIONS, WARRANTIES OR CONDITIONS ABOUT THE QUALITY, ACCURACY, RELIABILITY, COMPLETENESS, CURRENCY, OR TIMELINESS OF THE PLATFORM OR THE CONTENT. THE PLATFORM AND THE CONTENT MAY INCLUDE ERRORS, OMISSIONS AND INACCURACIES, INCLUDING, WITHOUT LIMITATION, PRICING ERRORS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TOLLE DOES NOT ASSUME ANY RESPONSIBILITY FOR ANY ERRORS, OMISSIONS OR INACCURACIES IN THE PLATFORM OR THE CONTENT. IN ADDITION, TOLLE EXPRESSLY RESERVES THE RIGHT TO CORRECT ANY PRICING ERRORS ON THE PLATFORM.

DRIVER AND MOVING ENGAGEMENT REVIEWS DISPLAYED ON THE SITE ARE INTENDED AS ONLY GENERAL GUIDELINES, AND TOLLE DOES NOT GUARANTEE THE ACCURACY OF THE REVIEWS. TOLLE MAKES NO GUARANTEES ABOUT THE AVAILABILITY OF SPECIFIC DRIVERS OR MOVING ENGAGEMENT. WITHOUT LIMITING THE FOREGOING, TOLLE MAKES NO GUARANTEES ABOUT ANY DRIVER’S ABILITY TO FULFILL ITS OBLIGATIONS WITH RESPECT TO A MOVING ENGAGEMENT OR MOVING AGREEMENT, INCLUDING, WITHOUT LIMITATION, THE SUITABILITY OF ANY DRIVER TO PERFORM ANY SERVICES IN A WORKMAN-LIKE OR PROFESSIONAL MANNER.

 

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, TOLLE DISCLAIMS ALL WARRANTIES, REPRESENTATIONS AND CONDITIONS OF ANY KIND WITH RESPECT TO THE PLATFORM (OR ANY PART THEREOF) AND THE CONTENT (OR ANY PART THEREOF) WHETHER EXPRESS, IMPLIED, STATUTORY OR COLLATERAL, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE, OR THAT THE PLATFORM OR THE CONTENT ARE OR WILL BE ERROR-FREE OR WILL OPERATE WITHOUT INTERRUPTION.

IN NO EVENT WILL TOLLE BE LIABLE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER LEGAL THEORY, FOR ANY DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, LOST PROFITS, LOSS OF USE, LOSS OF DATA, PERSONAL INJURY, FINES, FEES, PENALTIES OR OTHER LIABILITIES), WHETHER OR NOT TOLLE IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, RESULTING FROM OR RELATED TO THE USE OF, OR THE INABILITY TO MAKE USE OF, THE PLATFORM OR THE CONTENT OR ANY MOVING AGREEMENT.

DRIVERS MARKETING THEIR SERVICES THROUGH THE PLATFORM ARE INDEPENDENT CONTRACTORS AND NOT CONTRACTORS, AGENTS OR EMPLOYEES OF TOLLE. TOLLE IS NOT LIABLE FOR THE ACTS, ERRORS, OMISSIONS, REPRESENTATIONS, WARRANTIES, CONDITIONS, BREACHES OR NEGLIGENCE OF ANY DRIVERS OR FOR ANY PERSONAL INJURIES, DEATH, PROPERTY DAMAGE, OR OTHER DAMAGES OR EXPENSES RESULTING THEREFROM AND TAKES NO RESPONSIBILITY WHATSOEVER RELATED TO ANY RIDES OR MOVING AGREEMENTS ENTERED INTO BY YOU AND ANY DRIVERS, INCLUDING, WITHOUT LIMITATION, IN RESPECT OF ANY LIABILITIES, CLAIMS, CAUSES OF ACTION, DEMANDS, RECOVERIES, LOSSES, DAMAGES, FINES, PENALTIES, OR OTHER COSTS OR EXPENSES YOU MAY INCUR OR BECOME LIABLE FOR, WHETHER UNDER CONTRACT, COMMON LAW, STATUTE OR OTHERWISE, ASSOCIATED WITH THE TERMINATION OR CESSATION OF ANY RIDES OR MOVING AGREEMENTS FOR ANY REASON (COLLECTIVELY, “TERMINATION DAMAGES”). YOU AGREE TO INDEMNIFY TOLLE AND HOLD US HARMLESS FROM ANY DAMAGES (INCLUDING TERMINATION DAMAGES) THAT ANY DRIVER OR OTHER THIRD PARTY MAY BECOME ENTITLED TO IN RESPECT OF ANY MOVING ENGAGEMENT OR MOVING AGREEMENT.

 

THE FOREGOING LIMITATION APPLIES TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. TO THE EXTENT THAT THE FOREGOING LIMITATION DOES NOT APPLY, IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF TOLLE IN CONNECTION WITH OR UNDER THESE TERMS OF USE, INCLUDING WITHOUT LIMITATION FROM A MOVING AGREEMENT, OR YOUR USE OF, OR INABILITY TO MAKE USE OF, THE PLATFORM OR THE CONTENT, OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO A MOVING AGREEMENT, OR YOUR USE OF, OR INABILITY TO MAKE USE OF, THE PLATFORM OR THE CONTENT EXCEED ALL FEES TOLLE HAS COLLECTED FROM YOU UNDER THESE TERMS OF USE IN THE 12 MONTHS PRECEDING THE DATE THAT THE LIABILITY AROSE. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THESE TERMS OF USE WILL NOT INCREASE THE MAXIMUM LIABILITY AMOUNT.

 

The limitation above reflects the allocation of risk between the parties. The limitations specified in this section will survive and apply even if any limited remedy specified in these terms is found to have failed of its essential purpose.

 

Indemnification

You will defend, indemnify and hold harmless Tolle and all of its officers, directors, affiliates, successors, assigns, contractors, employees and agents from and against any liabilities, claims, causes of action, demands, recoveries, losses, damages, fines, penalties or other costs or expenses of any kind or nature including but not limited to reasonable legal and accounting fees, brought in connection with or as a result of any of the following:

(1) your breach of any of your warranties, conditions, representations or obligations under these Terms of Use or any documents referenced herein;

(2) your violation of any applicable law or the rights of a third party (including, without limitation, privacy or intellectual property rights);

(3) your use of the Platform; or

(4) breach of or failure to perform under any Moving Agreement by you or by any third party acting on your behalf or with your permission.

Geographic Application of the Platform

Not all of the Drivers, Moving Engagements and services described on the Platform are available in all jurisdictions. Furthermore, nothing on the Platform constitutes an offer or solicitation to buy or sell any product or service to anyone in any jurisdiction in which such an offer or solicitation is prohibited by applicable law.

Governing Law and Jurisdiction

These Terms of Use will be governed by the laws of the Province of Alberta and the federal laws of Canada applicable therein. These laws apply to your use of the Platform or the Content, notwithstanding your domicile, residency or physical location. The Platform and the Content are intended for use only in jurisdictions where they may lawfully be offered for use.

Arbitration

Except where prohibited by law, any controversy, claim or dispute arising out of, relating to, or in respect of these Terms of Use, including their negotiation, validity, existence, breach, termination, construction or application, or the rights, duties or obligations of any party, or the rights, duties or obligations of any party derived from or associated with these Terms of Use (a “Dispute”), shall be referred to and determined by a single arbitrator in a final and binding arbitration administered under the rules of ADR Institute of Canada, Inc.’s Arbitration Rules. If the parties have not agreed upon an arbitrator within 14 days, unless otherwise agreed by the parties in writing, the parties shall ask the ADR Institute of Canada, Inc. to appoint a single arbitrator. By so agreeing, you waive any right you may have to commence or participate in any class action against Tolle related to any Dispute and, where applicable, you hereby agree to opt out of any class proceeding against Tolle otherwise commenced.

The seat of the arbitration shall be the same as the provincial or territorial law governing these Terms of Use. The arbitration shall be heard in the capital of the seat, unless the parties agree otherwise. The costs and expenses of the arbitrator shall be shared equally between the parties. A party to the arbitration has no right of appeal from any award of the Arbitrator, whether characterized as final, interim, interlocutory or partial.

All Disputes referred to arbitration (including the scope of the agreement to arbitrate, the law relating to the enforcement of the agreement to arbitrate, any relevant limitation periods, the law governing the procedure of the arbitration, the law relating to available remedies, set-off claims and conflict of laws rules) shall be governed by the law of the seat. Each party hereby irrevocably consents to venue in the capital of the seat, and to the jurisdiction of competent courts in the capital of the seat for all litigation that may be brought, however it is agreed and acknowledged that the intention of the parties is to arbitrate the Dispute without recourse to the courts.

A party to these Terms of Use may take such steps as are permitted or required to enforce an award made by an Arbitrator. Except as required by law, and only to the extent that such disclosure is reasonably necessary, or for the purposes of obtaining professional advice, the existence of the arbitration and any element of the arbitration, including any award, shall be confidential and shall not be disclosed to any non-party to the arbitration. No document or other evidence or information prepared for or produced by or on behalf of any party to the arbitration shall be disclosed to any non-party to the arbitration.

Entire Agreement, Waiver and Severability

These Terms of Use constitute the entire agreement between Tolle and you pertaining to the subject matter hereof and supersede all prior or contemporaneous communications and proposals, whether electronic, oral or written, between you and Tolle with respect to the Platform. A printed version of these Terms of Use and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to these Terms of Use to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.

Tolle’s failure to insist upon or enforce strict performance of any provision of these Terms of Use will not be construed as a waiver of any provisions or right. Any waiver by Tolle of a right or a provision hereof must be provided by Tolle in writing.

If any of the provisions contained in these Terms of Use are determined to be void, invalid or otherwise unenforceable by a court of competent jurisdiction, such determination will not affect the remaining provisions contained herein.

If any of the provisions contained in these Terms of Use conflict with the terms of another agreement between the parties (such as the terms of a Moving Agreement in respect of a Moving Engagement), then these Terms of Use will prevail; provided that, if you are also a Driver registered on the Platform, the terms of use applicable to Drivers will govern your relationship with Tolle in that respect.

It is the express wish of the parties that these Terms of Use and all related documents be drawn up in English. C’est la volonté expresse des parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.

Apple App Store Additional License Terms

If the Application is provided to you through the Apple Inc. (Apple Inc. together with all of its affiliates, “Apple”) App Store, the following terms and conditions apply to you in addition to all the other terms and conditions of this Terms of Use:

The parties acknowledge this Terms of Use is concluded between you and us, and not with Apple. The responsibility for the Application and content thereof is governed by this Terms of Use.

Notwithstanding anything else in this Terms of Use, you may use the Application only on an iPhone or iPod touch that you own or control.

You and we acknowledge that Apple has no obligation to furnish any maintenance or support services with respect to the Application.

In the event of any failure of the Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Application (if any) to you. Except for the foregoing, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Application, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be governed by this Terms of Use.

Any claim in connection with the Application related to product liability, a failure to conform to applicable legal or regulatory requirements, claims under consumer protection or similar legislation is governed by this Terms of Use, and Apple is not responsible for such claim.

Any third party claim that the Application or your possession and use of the Application infringes that third party’s intellectual property rights will be governed by this Terms of Use, and Apple will not be responsible for the investigation, defense, settlement and discharge of such intellectual property infringement claim.

You represent and warrant that you are not: (i) located in any country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; or (ii) listed on any U.S. Government list of prohibited or restricted parties.

You may contact us in writing regarding any notices, questions, complaints, or claims with respect to the Application.

Name: Jazmyn Rusnack
Address: Unit 805 – 6223 31st Ave NW Calgary, AB T3B1J8
Telephone Number: 587-228-9353
Email Address: support@tolleapp.com

Apple are a third party beneficiaries to this Terms of Use and may enforce this Terms of Use against you.

If any of the terms and conditions in this Terms of Use are inconsistent or in conflict with Apple’s applicable instructions for Minimum Terms for Developer’s End User License Agreement or the App Store Terms of Service as of the Effective Date, the terms and conditions of Apple’s instructions for Minimum Terms for Developer’s End User License Agreement or App Store Terms of Service, as applicable, will apply to the extent of such inconsistency or conflict.

Google Play Additional License Terms

If the Application is provided to you through the Google Inc. (Google Inc. together with all of its affiliates, “Google”) Google Play, the following terms and conditions apply to you in addition to all the other terms and conditions of this Terms of Use: (a) You acknowledge that Google is not responsible for providing support services for the Application; and (b) if any of the terms and conditions in this Terms of Use are inconsistent or in conflict with Google’s Google Play Developer Distribution Agreement as of the date this Terms of Use was accepted, the terms and conditions of Google’s Google Play Developer Distribution Agreement will apply to the extent of such inconsistency or conflict.

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