Provider Agreement

Instaglam Express (Pty) Ltd

Provider use of Technology Services Agreement

Last updated: 1 February 2018

This Technology Services Agreement (“Agreement”) constitutes a legal agreement between you, a person (“you”) and Instaglam Express (Pty) Ltd Services on Demand (“Instaglam Express (Pty) Ltd”) within Southern Africa. Instaglam Express (Pty) Ltd provides lead generation as well as facilitates payments to independent providers of Personal Services, using the Services as defined in this document as well as our Terms. The Services will enable an authorised Third Party Provider to receive, seek for, and furnish requests for the Personal Services from an authorised user of Instaglam Express (Pty) Ltd mobile applications.

In order for you to use the Instaglam Express (Pty) Ltd Services, you must agree to the Terms and Condition that are set forth below. You acknowledge and agree that Instaglam Express (Pty) Ltd is a technology services provider that does not provide Personal Services, and upon your execution (electronic or otherwise) of this Agreement, you and your Company shall be bound by the terms and conditions set forth herein.

IMPORTANT: PLEASE NOTE THAT TO USE THE INSTAGLAM EXPRESS (PTY) LTD SERVICES, YOU MUST FIRST AGREE TO THE TERMS AND CONDITIONS SET FORTH BELOW. It is important for you to read the arbitration provision as it will require you to resolve disputes with the company on an individual basis, through final and binding arbitration. By virtue of your electronic execution of this agreement, you will be agreeing that you have read as well as understood all of the terms of this Agreement and that you have taken the time to consider the consequences of this very important business decision. If you do not wish to be subject to arbitration in the event of a dispute, you may opt out of the arbitration provision by following the instructions provided in the arbitration provision below.

1.    Definitions

1.1  “Affiliate” refers to an entity, that directly or indirectly controls or is under the control of another entity, where control means having more than fifty percent of the voting stock or other ownership of the voting rights of such entity.

1.2  “Instaglam Express (Pty) Ltd Services” refers to the on-demand lead generation Application and related services licensed by Instaglam Express (Pty) Ltd, which may be updated or modified from time to time.

1.3  “Company Data” refers to all data related to the access and use of the Instaglam Express (Pty) Ltd Services below, including all data related to Users such as User information and all data related to the provision of Personal Services through the use of the Services and the Provider Application (“Provider App”).

1.4  “Company Device” refers to a mobile device owned or controlled by Instaglam Express (Pty) Ltd that has been provided to you solely for the use of the Provider App in order to provide the requested Services.

1.5  “Device” refers to a Company Device or Your Device, as the case may be.

1.6   “Fee” refers to the amount that you have quoted to the customer, which will encompass the total costs for You as well as Instaglam Express (Pty) Ltd.

1.7   “Helper” refers to a person registered with Instaglam Express (Pty) Ltd that is utilised by a specific service provider in order to assist with service delivery completion.

1.8        “Personal Services” refers to services that are associated directly to people such as, hairstylist, nail technician, make-up artist etc.

1.9        “Provider App” refers to the mobile application provided by Instaglam Express (Pty) Ltd that enables Third Party Providers to access the Services for the purposes of receiving, seeking, and furnishing requests for Personal Services on Demand from an authorised user of the Instaglam Express (Pty) Ltd mobile applications, which may also be updated or modified from time to time.

1.10        “Region” refers to the city or metro areas in Southern Africa in which you are enabled by the Provider App to receive requests for Services.

1.11        “Service(s)” refers to work provided to a User which is listed in the Personal categories mentioned above.

1.12        “Service Provider” refers to a third party provider such as yourself of a registered Service as listed in the Personal categories.

1.13        “Supplemental Information” refers to an addendum to this Agreement as made available and as updated by Instaglam Express (Pty) Ltd from time to time.

1.14         “User” refers to an end user authorised by Instaglam Express (Pty) Ltd to use the Application for the purposes of obtaining Personal Services from Third Party Providers.

1.15        “User Information” refers to information about a User made available to You in relation to requests for the use of your Services, which may include the Users name, job location, contact information and photo.

1.16        “Vehicle” refers to your vehicle that shall meet the then-current Company requirements.

1.17        “Your Device” refers to your own mobile device, owned and controlled by you, which shall meet then-current Company specifications for which the Provider App to be installed upon in order for you to provide the requested Services.

2.    Use of the Instaglam Express (Pty) Ltd Services

2.1  Application password. You will have selected your own User password when creating your Account. You agree that you will maintain your Account as well as keep your password secure at all times. You will also immediately notify the Company of any actual or suspected breach or disclosure of your Account information.

2.2  Provision for Services. When your Provider App is active, User requests for (“Services”) may appear to you if you are available and in the vicinity of the User. The company reserves the right to deactivate your Account if you have not fulfilled a request for Services using the Application at least once a month. You acknowledge and agree that once you have accepted a User’s request for Services, Instaglam Express (Pty) Ltd’s mobile Application may provide the User with information about you to the User, such as your first name, photo, Vehicle make and license plate number. If you accept a User’s request for Services, the Application will provide you with certain User information, including the Users name and location. It is recommended that you wait at least 15 minutes for a User to show up or let you in at the requested location. You shall not contact any User, nor shall you use any User’s personal data for any reason other than for the purposes of fulfilling the User’s specific Services request. You accept and agree that (i) you shall be solely responsible for determining the most effective as well as the safest manner to deliver your respective Service, and (ii) with the exception of the Application or any Company Devices (if applicable), you shall provide all necessary equipment, tools and other materials, at your own expense that is necessary to perform your respective Service, with the exception of the customer choosing to supply all materials – you as the service provider are still required to supply the tools and equipment in order the complete the service.

2.3  With regards to your relationship with Users, you acknowledge and agree that your provision to provide your Services to the Users creates a business relationship between you and the User. Instaglam Express (Pty) Ltd is not responsible or liable for the actions or inactions of a User in relation to you, your activities, your tools, equipment or your Vehicle. You shall have sole responsibility for any obligations or liabilities to Users or third parties that arise from your provision of your respective Services. You further acknowledge and agree that you are solely responsible for taking such precautions as may be reasonable and proper (including maintaining adequate insurance that meets the requirements of all applicable laws, including that of your motor vehicle) regarding any acts or omissions of a User or third party. You acknowledge and agree that Instaglam Express (Pty) Ltd may release your contact as well as insurance information to a User upon such User’s reasonable request.

2.4  With regards to your relationship with Instaglam Express (Pty) Ltd. You acknowledge and agree that the Company’s provision of the Provider App and the Instaglam Express (Pty) Ltd Services constitutes a direct business relationship between Instaglam Express (Pty) Ltd and you. Instaglam Express (Pty) Ltd does not, and shall not be deemed to, direct or control you generally or in your performance under this Agreement specifically, including in connection with you provision of Services, your acts or omissions, or your operation and maintenance of your Vehicle. You retain the sole right to determine when, where, and for how long you will utilise the Provider App or the Instaglam Express (Pty) Ltd Services. You retain the option, via the Provider App, to attempt to accept or to decline or ignore a User’s request for Services via Instaglam Express (Pty) Ltd Services, or to cancel an accepted request for Services via the Provider App, subject to Instaglam Express (Pty) Ltd’s then-current cancellation policies. With the exception of any signage required by local law or permit/license requirements, Instaglam Express (Pty) Ltd shall have no right to require you to: (i) display Instaglam Express (Pty) Ltd’s or any of its Affiliates’ names, logos or colours on your Vehicle(s), or (ii) wear a uniform or any other clothing displaying Instaglam Express (Pty) Ltd’s or any of its Affiliates’ names, logos or colours. You acknowledge and agree that you have complete discretion to provide services or otherwise engage in other business or employment activities. The Company makes it clear that you retain the complete right to, (i) use other software application services in addition to Instaglam Express (Pty) Ltd Services, and (ii) engage in any other occupation or business. Instaglam Express (Pty) Ltd retains the right to deactivate or otherwise restrict you from accessing or using the Provider App as well as the Instaglam Express (Pty) Ltd Services in the event of a violation or alleged violation of this Agreement, your disparagement of Instaglam Express (Pty) Ltd or any of its Affiliates, your act or omission that causes harm to Instaglam Express (Pty) Ltd or its Affiliates’ bands, reputations or businesses as determined by Instaglam Express (Pty) Ltd in its sole discretion.

2.5  Ratings

2.5.1     You acknowledge and agree that: (i) after receiving Services, a User will be prompted by Instaglam Express (Pty) Ltd’s mobile Application to provide a rating of you and such Services and, optionally to provide comments or feedback about you and such Services, and (ii) after providing Services, you will be prompted by the Provider App to provide a rating of the User and, optionally, to provide comments or feedback about the User. You shall provide your ratings and feedback in good faith.

2.5.2     You acknowledge that Instaglam Express (Pty) Ltd desires that Users have access to the best quality Services via Instaglam Express (Pty) Ltd’s mobile application. In order to continue to receive access to the Provider App and the Instaglam Express (Pty) Ltd Services, you must maintain an average rating by Users that exceeds the minimum average acceptable rating established by Instaglam Express (Pty) Ltd for your Region, as may be updated from time to time by Instaglam Express (Pty) Ltd in its sole discretion (“Minimum Average Rating” or “M.A.R”). Your average rating is intended to reflect Users’ satisfaction with your specific Services rather than your compliance with any Company policies or recommendations. In the event that your average rating falls below the M.A.R, Instaglam Express (Pty) Ltd will notify you and may provide you, at Instaglam Express (Pty) Ltd’s discretion, a limited time period to raise your average rating above the M.A.R. If you do not manage to raise your rating above the minimum level within the time period allowed (if any), Instaglam Express (Pty) Ltd reserves the right to deactivate your access to the Provider App and the Instaglam Express (Pty) Ltd Services. Furthermore, you acknowledge and accept that your repeated failure to accept requests for Services while you are logged in to the Provider App creates a negative experience for Users of Instaglam Express (Pty) Ltd’s mobile application and you therefore agree to log off from the Provider App if you do not wish to accept Services for a certain period of time.

2.5.3     Instaglam Express (Pty) Ltd and its Affiliates reserve the right to use, share and display your as well as User ratings and comments in any manner that is in connection with the Company and its Affiliates without attribution to you or your approval. You acknowledge and agree that Instaglam Express (Pty) Ltd and its Affiliates are distributors and not publishers of your and User ratings and comments (without any obligation to verify), provided that Instaglam Express (Pty) Ltd and its Affiliates reserve the right to edit or remove comments in the event that such comments include obscenities or other objectionable content, include an individual’s name or other personal information, or violate any privacy laws, other applicable laws or Instaglam Express (Pty) Ltd’s or its Affiliates’ content policies.

2.6  Devices

2.6.1      Instaglam Express (Pty) Ltd encourages you to use Your Device in providing Services. Otherwise, if you elect to use any Company Devices, Instaglam Express (Pty) Ltd will supply you upon request with a Company Device and provide the necessary wireless data plan for such Devices, provided that Instaglam Express (Pty) Ltd receives reimbursement from you for the costs associated with the wireless data plan as well as request a deposit for each Device. You agree that (i) Company Devices may only be used for the purpose of enabling your access to the Instaglam Express (Pty) Ltd Services, and (ii) Company Devices may not be transferred, loaned, sold or otherwise provided in any manner to any party other than you. Company Devices shall at all times remain the property of Instaglam Express (Pty) Ltd, and upon termination of this Agreement or your termination or deactivation, you agree to return to Instaglam Express (Pty) Ltd the applicable Company Devices within seven (7) days. You agree that failure to return the Company Devices in a timely manner, or damage to outside of normal wear and tear, will result in the forfeiture of related deposits.

2.6.2      If you elect to use Your Devices, (i) you are responsible for the acquisition, cost, maintenance and insurance of Your Devices as well as any necessary wireless data plan, and (ii) Instaglam Express (Pty) Ltd shall make available the Provider App for installation on Your Device. Instaglam Express (Pty) Ltd herby grants you a personal, non-exclusive, non-transferrable license to install land use the Provider App on Your Device solely for the purpose of providing requested Services. You agree not to provide, distribute or share, nor enable the provision, distribution or sharing of the Provider App (or any data associated therewith) with any third party. The foregoing license grant shall immediately terminate and you will delete and fully remove the Provider App form the Device in the event that you cease to provide Services using Your Device. You agree that (i) use of the Provider App on Your Device requires an active data plan with a wireless carrier associated with Your Device, which will be chosen and paid for by you, and (i) use of the Provider App on Your Device as an interface with the Instaglam Express (Pty) Ltd Services may consume very large amounts of data through the data plan. Instaglam Express (Pty) Ltd advises that Your Device only be used under a data plan with unlimited or very high data usage limits, and Instaglam Express (Pty) Ltd shall not be responsible or liable for any fees, costs, or extra charges associated with any data plan.

2.7  Location based services. You acknowledge and agree that your geo-location information must be provided to Instaglam Express (Pty) Ltd Services via a Device in order to provide your specific Services. You agree that: (i) your geo-location information may be obtained by Instaglam Express (Pty) Ltd Services while the Provider App is running, and (ii) the approximate location of your Vehicle will be displayed to the User before and during the provision of Services to such User. Additionally, Instaglam Express (Pty) Ltd and its Affiliates may monitor, track and share third parties geo-location information obtained by the Provider App and Device for safety and security purposes.

3.  You and Your Vehicle

3.1  Your Requirements. You acknowledge and agree that at all times, you shall: (i) hold and maintain a valid driver’s license with the appropriate level of certification to operate your Vehicle, and (ii) all licenses, permits, approvals and authority applicable to you, that are necessary to provide your specific services to third parties in the Region are acquired, held and supplied to Instaglam Express (Pty) Ltd by you. You acknowledge and agree that you are required to possess the appropriate and current level of training, expertise and experience to provide your specific Services in a professional manner with due skill, care and diligence, and that you will maintain high standards of professionalism, service and courtesy. You acknowledge and agree that Instaglam Express (Pty) Ltd reserves the right, at any time at Instaglam Express (Pty) Ltd’s sole discretion, to deactivate or otherwise restrict you from accessing or using the Provider App or the Instaglam Express (Pty) Ltd Services if you fail to meet the requirements set forth in this Agreement.

3.2  Vehicle Requirements. You acknowledge and agree that your Vehicle shall at all times be: (i) properly registered and licensed to operate as a roadworthy vehicle in the Region, (ii) owned or leased by you, or otherwise in your lawful possession, and (iii) maintained in good operating condition, consistent with industry safety and maintenance standards for a Vehicle of its kind and any additional standards or requirements in the applicable Region.

3.3  Documentation. In order to ensure your compliance with all the requirements in section 3.1 and 3.2 above, you must provide Instaglam Express (Pty) Ltd with written copies of all such licenses, permits, approvals, authority registrations and certifications prior to your provision of any Services. You also agree to submit to Instaglam Express (Pty) Ltd the proof of renewal of aforementioned documentation as, and when required, failure to provide or maintain any of the foregoing shall constitute a material breach of this Agreement. Instaglam Express (Pty) Ltd reserves the right to independently verify your documentation from time to time in any way deemed appropriate in its reasonable discretion.

4.  Financial Terms

4.1  Quotations and Your Payment. You are entitled at your own reasonable discretion to quote as you so desire for your specific Services. You acknowledge and agree that Users will be able to receive multiple quotations from various other (“Service Providers”) such as yourself and that the User will have full discretion to choose the Service Provider that the User deems to be most suitable. You further acknowledge and agree that the quoted Fee is the only Fee that you shall receive minus the lead generation commission percentage which is due to Instaglam Express (Pty) Ltd, you also agree that you are not entitled to any form of gratuity and that should the User offer such gratuity it will be at the Users sole discretion. You agree to appoint Instaglam Express (Pty) Ltd as your limited payment collection agent solely for the purpose of accepting the Fee, applicable to your respective Service. You agree that payment made by User to Instaglam Express (Pty) Ltd (or Affiliate of Instaglam Express (Pty) Ltd acting as an agent of Instaglam Express (Pty) Ltd) shall be considered the same as payment made directly by User to you. Instaglam Express (Pty) Ltd agrees to remit, or cause to be remitted, to you on at least a weekly basis: (i) the Fee less the applicable Service Fee, (ii) depending on the region, certain taxes and ancillary fees. If you have separately agreed that other amounts may be deducted from the Fee prior to remittance to you (e.g., mobile device and usage charges), the order of any such deductions from the Fee shall be deemed exclusively by Instaglam Express (Pty) Ltd (as between you and Instaglam Express (Pty) Ltd).

4.2  Fee Adjustment. Instaglam Express (Pty) Ltd reserves the right to (i) adjust the Fee for a particular Service (e.g. it is deemed by Instaglam Express (Pty) Ltd that the final invoice has been grossly overcharged to the User.): or (ii) cancel the Fee for a particular Service (e.g. User is charged for Services that were not provided, in the event of a User complaint, fraud, etc.). Instaglam Express (Pty) Ltd’s decision to reduce or cancel the Fee in any such manner shall be exercised in a reasonable manner.

4.3  Service Fee. You acknowledge and agree that Instaglam Express (Pty) Ltd’s provision of the Provider App and the Instaglam Express (Pty) Ltd Services for your use and benefit hereunder shall constitute a service fee on a per Services transaction basis calculated as a percentage of the Fee as provided to you via email or otherwise made available electronically by Instaglam Express (Pty) Ltd from time to time for the applicable Region (“Service Fee”). In the event that regulations applicable to your Region require taxes to be calculated on the Services, Instaglam Express (Pty) Ltd shall calculate the Service Fee based on the Fee net of such taxes. Instaglam Express (Pty) Ltd reserves the right to change the Service Fee at any time in Instaglam Express (Pty) Ltd’s discretion based upon local market factors, and Instaglam Express (Pty) Ltd will provide you with notice in the event of such change. Continued use of the Instaglam Express (Pty) Ltd Services after such change in the Service Fee calculation shall constitute your consent to such change.

4.4  Cancellation Charges. You acknowledge and agree that Users may elect to cancel requests for Services that have been accepted by you via the Provider App at any time prior to your arrival. In the event that a User cancels an accepted request for Services, Instaglam Express (Pty) Ltd may charge the User a cancellation fee on your behalf. If charged, this cancellation fee shall be deemed the Fee for the cancelled Service for the purpose of remittance to you hereunder (“Cancellation Fee”).

4.5  Receipts. As part of the Instaglam Express (Pty) Ltd Services, Instaglam Express (Pty) Ltd provides you a system for the delivery of receipts to Users via email for Services rendered on your behalf. Such receipts are also provided to you via email through the Instaglam Express (Pty) Ltd Services. Receipts include the breakdown of amounts charged by you to the User and may include specific information about you, including your name, contact information and photo, as well as a map of the route you took. Any correction to the User’s receipt for Services must be submitted to Instaglam Express (Pty) Ltd in writing within three (3) business days after the completion of such Services. Should this not be done, Instaglam Express (Pty) Ltd shall not be liable for any mistakes in or corrections to the receipt or for the recalculation or disbursement of the Fee.

4.6  No additional amounts. You acknowledge and agree that, Instaglam Express (Pty) Ltd for the mutual benefit of the parties, though advertising and marketing may seek to attract new Users and increase existing Users on Instaglam Express (Pty) Ltd’s mobile application. You agree that such advertising does not entitle you to any additional monetary amounts beyond the amounts expressly set forth in this Agreement.

4.7  Taxes. You acknowledge and agree that you are required to: (i) complete all tax registration obligations and calculate and remit all tax liabilities related to your provision of specific Services as required by applicable law, and (ii) provide Instaglam Express (Pty) Ltd with all relevant tax information. You further acknowledge and agree that you are responsible for taxes on your income arising from the performance of your specific Services. Notwithstanding anything to the contrary in the Agreement, Instaglam Express (Pty) Ltd may in its reasonable discretion based on applicable tax and regulatory considerations, collect and remit taxes resulting from your provision of Services and/or provide any of the relevant tax information you have provided pursuant to the forgoing requirements in this Section 4.7 directly to the applicable governmental tax authorities on your behalf or otherwise.

5.  Proprietary Rights

5.1  License. Subject to the terms and conditions of this Agreement, Instaglam Express (Pty) Ltd hereby grants you a non-exclusive, non-transferable, non-sub licensable, non-assignable license, during the term of this Agreement, to use the Provider App and the Instaglam Express (Pty) Ltd Services solely for the purpose of providing your specific Services to Users. All rights not expressly granted to you are reserved by Instaglam Express (Pty) Ltd, its Affiliates and their respective licensors.

5.2  Restrictions. You agree and acknowledge that you shall not allow any other party to license, sell, resell, transfer, assign, distribute or otherwise provide or make available to any other party the Provider App or the Instaglam Express (Pty) Ltd Services or any Company Device in any way. You shall not modify or make derivative works based upon the Instaglam Express (Pty) Ltd Services or Provider App, neither shall you: (i) improperly use the Services or Provider App to create internet links to any part of the Services, “framing” or “mirroring” any part of the Services or Provider App on any websites or systems, or “scrapping” or otherwise obtaining data from the Instaglam Express (Pty) Ltd Services or Provider App, or (ii) reverse engineer, decompile, modify, or disassemble the Instaglam Express (Pty) Ltd Services or Provider App, except as allowed under applicable law, or (iii) send spam, duplicative or unsolicited messages. In addition to this, you shall not, and shall not allow any other party to, aces or use the Services or Provider App to: (i) design or develop a competitive or substantially similar product or service, (ii) copy any features, functionality, or content thereof, (iii) launch or cause to be launched on or in connection with the Instaglam Express (Pty) Ltd Services an automated program or script, including web spiders, crawlers, robots, indexers, bots, viruses or worms, or any program which may make multiple server requests per second, or unduly burden or hinder the operation and performance of the Instaglam Express (Pty) Ltd Services, or (iv) attempt to gain unauthorised access to the Instaglam Express (Pty) Ltd Services or its related systems or networks.

5.3  Ownership. The Instaglam Express (Pty) Ltd Services, Provider App and Company Data, including all intellectual property rights, and the Company Devices are and shall remain the property of Instaglam Express (Pty) Ltd, its Affiliates or their respective licensors. Neither this Agreement nor your use of the Instaglam Express (Pty) Ltd Services, Provider App, Company Data or Company Devices conveys or grants to you any rights in or related to the Instaglam Express (Pty) Ltd Services, Provider App or Company Data, except for the limited license granted above. Other than as specifically permitted by Instaglam Express (Pty) Ltd, you are not permitted to use or reference in any manner Instaglam Express (Pty) Ltd’s company names, logos, products and service names, trademarks, service marks, trade dress, copyrights or distinguishing marks of ownership, alone and in combination with letters, punctuation, words, symbols and/or designs for any commercial purposes. You agree that you will not try to register or otherwise use and/or claim ownership in any of the INSTAGLAM EXPRESS (PTY) LTD Marks and Names, alone or in combination with other letters, punctuation, words, symbols and/or designs, or in any confusingly similar mark, name or title, for any goods and services.

6.  Confidentiality

6.1  Each party acknowledges and agrees that in the performance of this Agreement it may have access to or may be exposed to, directly or indirectly, confidential information of the other party (“Confidential Information”). This information includes Company Data, Provider ID’s, User Information, transaction volume, marketing and business plans, financial, technical, operational and such other non-public information of each party (whether disclosed in writing or verbally) that such party designates as being proprietary or confidential or of which the other party should reasonably know that it should be treated as confidential. Each party acknowledges and agrees that: (i) all Confidential Information shall remain the exclusive property of the disclosing party, (ii) it shall not use the Confidential Information of the other party for any purpose except in furtherance of this Agreement, (iii) it shall not disclose Confidential Information of the other party to any third party, except to its employees, officers, contractors, agents and service providers (“Permitted Persons”) as necessary to perform under the Agreement, provided Permitted Persons are bound in writing to obligations of confidentiality and non-use of Confidential Information no less protective than the terms hereof, and (iv) it shall return or destroy all Confidential Information of the disclosing party, upon the termination of this Agreement or at the request of the other party (subject to applicable law, and with respect to Instaglam Express (Pty) Ltd, its internal record-keeping requirements).

6.2  Notwithstanding the foregoing, Confidential Information shall not include any information to the extent that it: (i) is or becomes part of the public domain through no act or omission on the part of the receiving party, (ii) was in possession of the receiving party prior to the date of this Agreement without an obligation of confidentiality, (iii) is disclosed to the receiving party having no obligation of confidentiality with respect thereto, or (iv) is required to be disclosed by legal authorities such as by court order, subpoena or governmental authority, provided that the receiving party notifies the disclosing party thereof and provides the disclosing party a reasonable opportunity to contest or limit such required disclosure.

7.  Privacy

7.1  Disclosure of your information. Subject to applicable law, Instaglam Express (Pty) Ltd may, but shall not be required to, provide to you, a User, an insurance company, or relevant authorities and regulatory agencies any information such as personal information obtained through any background check about you or any Services provided hereunder if: (i) there is a complaint, dispute or conflict, including an accident, between you and a User, (ii) it is necessary to enforce the terms of this Agreement, (iii) it is required, in Instaglam Express (Pty) Ltd’s sole discretion, by applicable law or regulatory requirements (e.g. Instaglam Express (Pty) Ltd receives a subpoena, warrant, or other legal process for information), (iv) it is necessary, in Instaglam Express (Pty) Ltd’s sole discretion to protect the rights, property or security of Instaglam Express (Pty) Ltd, the Instaglam Express (Pty) Ltd Services or any third party, (v) to protect the safety of the public for any reason including the facilitation of insurance claims related to the Instaglam Express (Pty) Ltd Services, (vi) to detect, prevent or otherwise address fraud, security or technical issues, to prevent or stop activity which Instaglam Express (Pty) Ltd, in its sole discretion, may consider to be, or pose a risk of being illegal, unethical, or legally actionable activity, (vii) is required in Instaglam Express (Pty) Ltd’s sole discretion, for insurance or other purposes related to your ability to qualify, or remain qualified, to use the Instaglam Express (Pty) Ltd Services. You understand that Instaglam Express (Pty) Ltd may retain your personal data for legal, regulatory, safety and other necessary purposes after this Agreement is terminated.

7.2  Instaglam Express (Pty) Ltd may collect your personal data during the course of your application for, and use of, the Instaglam Express (Pty) Ltd Services. Instaglam Express (Pty) Ltd may also obtain information about you from third parties. Such information may be stored, processed transferred, and accessed by Permitted Persons for business purposes, including for marketing, lead generation, service development and improvement, analytics, industry and market research, and such other purposes consistent with the Companies legitimate business needs. You acknowledge and agree to the use of such personal data by Instaglam Express (Pty) Ltd.

8.  Insurance

8.1  You agree to maintain during the term of this Agreement on all your Vehicles operated by you, automobile liability insurance as well as for any other form of Service that you are performing that may necessitate the use of a Vehicle. Such insurance shall be required to provide protection against bodily injury and property damage to third parties at levels of coverage that satisfy the minimum requirements to operate a privately owned Vehicle on the roads within the Region. You agree to provide Instaglam Express (Pty) Ltd a copy of the insurance policy as well as proof of premium payment for the policy required in section 8.1 upon request. Additionally, you must provide Instaglam Express (Pty) Ltd with written notice of any cancellation of any insurance policy required by the Company. The insurance policy as well as insurance provider shall be of your own choosing as long as it complies with the minimum requirements in section 8.1.

8.2  You agree to maintain during the term of this Agreement workers’ compensation insurance as required by all applicable laws in the Region. If permitted by applicable law, you may choose to insure yourself against industrial injuries by maintaining occupational accident insurance in place of workers’ compensation insurance. Furthermore, if permitted by applicable law, you may choose not to insure yourself against industrial injuries at all, but you do so at your own risk.

8.3  You understand and agree that your personal automobile insurance policy may not afford liability, comprehensive, collision, medical payments, personal injury protection, uninsured motorist, underinsured motorist, or other coverage for the specific Services that you provide pursuant of this Agreement. If you have any questions or concerns regarding the scope or applicability of your insurance coverage, it is your own responsibility and not that of the Company to resolve these issues with your insurer(s).

8.4  Instaglam Express (Pty) Ltd may maintain during the term of this Agreement insurance related to your provision of Services as determined by Instaglam Express (Pty) Ltd in its reasonable discretion, provided that Instaglam Express (Pty) Ltd and its Affiliates are not required to provide you with any specific insurance coverage for any loss to you or your Vehicle. You are required to promptly notify Instaglam Express (Pty) Ltd of any accidents that occur while providing Services and to cooperate and provide all necessary information related thereto.

9.  Disclaimers, Indemnification and Limitations of Liability

9.1  Disclaimer of Warranties. INSTAGLAM EXPRESS (PTY) LTD AND ITS AFFILIATES PROVIDE YOU WITH THE PROVIDER APP AND THE INSTAGLAM EXPRESS (PTY) LTD SERVICES, WHICH YOU ACCEPT ON AN “AS IS” AND “AS AVAILABLE BASIS. INSTAGLAM EXPRESS (PTY) LTD AND ITS AFFILIATES DO NOT WARRANT OR GUARANTEE THAT YOUR ACCESS TO OR USE OF THE INSTAGLAM EXPRESS (PTY) LTD SERVICES, PROVIDER APP OR THE COMPANY DEVICES: (A) WILL BE UNINTERUPTED OR ERROR FREE, OR (B) WILL RESULT IN ANY REQUESTS FOR SERVICES. INSTAGLAM EXPRESS (PTY) LTD AND ITS AFFILIATES FUNCTION AS AN ON-DEMAND LEAD GENERATION AND RELATED SERVICE ONLY AND MAKE NO REPRESENTATIONS, WARRANTIES OR GUARANTEES AS TO THE ACTIONS OR INACTIONS OF THE USERS WHO MAY REQUEST OR RECEIVE SERVICES FROM YOU, AND INSTAGLAM EXPRESS (PTY) LTD AND ITS AFFILIATES DO NOT SCREEN OR OTHERWISE EVALUATE USERS. BY USING THE INSTAGLAM EXPRESS (PTY) LTD SERVICES AND PROVIDER APP, YOU ACKNOWLEDGE AND AGREE THAT YOU MAY BE INTRODUCED TO A THIRD PARTY THAT MAY POSE HARM OR RISK TO YOU OR OTHER THIRD PARTIES. YOU ARE ADVISED TO TAKE REASONABLE PRECAUTIONS WITH RESPECT TO INTERACTIONS WITH THIRD PARTIES ENCOUNTERED IN CONNECTION WITH THE USE OF THE INSTAGLAM EXPRESS (PTY) LTD SERVICES OR PROVIDER APP. NOTWITHSTANDING INSTAGLAM EXPRESS (PTY) LTD’S APPOINTMENT AS THE LIMITED PAYMENT COLLECTION AGENT OF YOU FOR THE PURPOSE OF ACCEPTING PAYMENT FROM USERS ON YOUR BEHALF AS SET FORTH IN SECTION 4 ABOVE, INSTAGLAM EXPRESS (PTY) LTD AND ITS AFFILIATES EXPRESSLY DISCLAIM ALL LIABILITY FOR ANY ACT OR OMISSION OF YOU, ANY USER OR OTHER THIRD PARTY. FURTHER TO THE ABOVE YOU ACKNOWLEDGE AND AGREE THAT INSTAGLAM EXPRESS (PTY) LTD WILL NOT BE RESPONSIBLE FOR ANY DELAYS, SERVICE DELIVERY FAILURES, OR OTHER DAMAGES, LIABILITIES OR LOSSES RESULTING FROM MAINTENANCE, CONNECTIVITY ISSUES OR ANY SUCH PROBLEMS.

9.2  Indemnification. You shall indemnify, defend (at Instaglam Express (Pty) Ltd’s option) and hold harmless Instaglam Express (Pty) Ltd and its Affiliates and their respective officers, directors, employees, agents, successors and assigns from and against any and all liabilities, expenses (including legal fees), damages, penalties, fines, social security contributions and taxes arising out of or related to: (i) your breach of your representations, warranties or obligations under this Agreement, or (ii) a claim by a third party (including Users, regulators and governmental authorities) directly or indirectly related to your provision of Services or use of the Instaglam Express (Pty) Ltd Services. This indemnification provision shall not apply to your breach of any representations regarding your status as an independent contractor.

9.3  Limitations of Liability. INSTAGLAM EXPRESS (PTY) LTD AND ITS AFFILIATES SHALL NOT BE LIABLE UNDER OR RELATED TO THIS AGREEMENT FOR ANY OF THE FOLLOWING, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES: (i) ANY INCIDENTAL, PUNITIVE, SPECIAL, EXEMPLARY, CONSEQUENTIAL, OR OTHER INDIRECT DAMAGES OF ANY TYPE OR KIND, OR (ii) YOUR OR ANY THIRD PARTY’S PROPERTY DAMAGE, OR LOSS OR INACCURACY OF DATA, OR LOSS OF BUSINESS, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE. EXCEPT FOR COMPANY’S OBLIGATIONS TO PAY AMOUNTS DUE TO YOU PURSUANT TO SECTION 4 ABOVE, BUT SUBJECT TO ANY LIMITATIONS OR OTHER PROVISIONS CONTAINED IN THIS AGREEMENT WHICH ARE APPLICABLE THERETO, IN NO EVENT SHALL THE LIABILITY OF COMPANY OR ITS AFFILIATES UNDER THIS AGREEMENT EXCEED THE AMOUNT OF SERVICE FEES ACTUALLY PAID TO OR DUE TO COMPANY HEREUNDER IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.

10.  Term and Termination

10.1        Term. This Agreement shall commence on the date accepted by you and shall continue until terminated as set forth herein.

10.2        Termination. Either party may terminate this Agreement: (i) without cause at any time upon seven (7) days prior written notice to the other party, (ii) immediately, without notice, for the other party’s material breach of this Agreement, or (iii) immediately, without notice, in the event of the insolvency or bankruptcy of the other party, or upon the other party’s filing or submission of request for suspension of payment (or similar action or event) against the terminating party. In addition, Instaglam Express (Pty) Ltd may terminate this Agreement or deactivate your Provider App immediately, without notice, with respect to you in the event you no longer qualify, under applicable law or the standards and policies of Instaglam Express (Pty) Ltd and its Affiliates, to provide Services or to operate the Vehicle, or as otherwise set forth in this Agreement.

10.3        Effect of Termination. Upon termination of the Agreement, you shall: (i) promptly return to Instaglam Express (Pty) Ltd all Company Devices, and (ii) immediately delete and fully remove the Provider App from any of Your Devices. Outstanding payment obligations and Sections 1, 2.3, 2.5.3, 4.7, 5.3, 6, 7, 9, 10, 11 and 12 shall survive the termination of this Agreement.

11.  Miscellaneous Terms

11.1        Modification. In the event that Instaglam Express (Pty) Ltd modifies the terms and conditions of this Agreement at any time, such modifications shall be binding on you only upon your acceptance of the modified Agreement. Instaglam Express (Pty) Ltd reserves the right to modify any information within this Agreement from time to time. You hereby acknowledge and agree that, by using the Instaglam Express (Pty) Ltd Services, or downloading, installing or using the Provider App, you are bound by any future amendments and additions to information herein, or documents incorporated herein, including with respect to Fee Calculations. Continued use of the Instaglam Express (Pty) Ltd Services or Provider App after any such changes shall constitute your consent to such changes. Unless changes are made to the arbitration provisions herein, you acknowledge and agree that modification of this Agreement does not create a renewed opportunity to opt out of arbitration.

11.2        Supplemental Terms. Supplemental terms may apply to your use of the Instaglam Express (Pty) Ltd Services, such as use policies or terms related to certain features and functionality, which may be modified from time to time (“Supplemental Terms”). You may be presented with certain Supplemental Terms from time to time. Supplemental Terms are in addition to, and shall be deemed a part of, this Agreement. Supplemental Terms shall prevail over this Agreement in the event of a conflict.

11.3        Assignment. Neither party shall assign or transfer this Agreement or any of its rights or obligations hereunder, in whole or in part, without the prior written consent of the other party; provided that Instaglam Express (Pty) Ltd may assign or transfer this Agreement or any or all of its rights or obligations under this Agreement from time to time without consent: (a) to an Affiliate; or (b) to an acquirer of all or substantially all of Instaglam Express (Pty) Ltd’s business, equity or assets.

11.4        Notices. Any notice delivered by Instaglam Express (Pty) Ltd to you under this Agreement will be delivered by email to the email address associated with your account. Any notice delivered by you to Instaglam Express (Pty) Ltd under this Agreement will be delivered by contacting Company at INFO@INSTAGLAM XPRESS.COM

12.  Governing Law, Arbitration

The failure of Instaglam Express (Pty) Ltd to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Instaglam Express (Pty) Ltd in writing. Other than disputes regarding the intellectual property rights of the parties and other claims identified in Section 14.1.ii, any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Instaglam Express (Pty) Ltd Services shall be subject to arbitration pursuant to Section 14.1.

12.1      Arbitration Provision

Important Note Regarding this Arbitration Provision:

Except as provided below, arbitration does not limit or affect the legal claims you may bring against the Company. Agreeing to arbitration only affects where any such claims may be brought and how they will be resolved. Arbitration is a process of private dispute resolution that does not involve the civil courts, a civil judge, or a jury. Instead, the parties’ dispute is decided by a private arbitrator selected by the parties using the process set forth herein. Other arbitration rules and procedures are also set forth herein. Unless the law requires otherwise, as determined by the Arbitrator based upon the circumstances presented, you will be required to split the cost of any arbitration with the Company. This Arbitration Provision will require you to resolve any claim that you may have against Instaglam Express (Pty) Ltd on an individual basis, except as provided below, pursuant to the terms of the Agreement unless you choose to opt out of the Arbitration Provision.

WHETHER TO AGREE TO ARBITRATION IS AN IMPORTANT BUSINESS DECISION. IT IS YOUR DECISION TO MAKE, AND YOU SHOULD NOT RELY SOLELY UPON THE INFORMATION PROVIDED IN THIS AGREEMENT AS IT IS NOT INTENDED TO CONTAIN A COMPLETE EXPLANATION OF THE CONSEQUENCES OF ARBITRATION. YOU SHOULD TAKE REASONABLE STEPS TO CONDUCT FURTHER RESEARCH AND TO CONSULT WITH OTHERS — INCLUDING BUT NOT LIMITED TO AN ATTORNEY — REGARDING THE CONSEQUENCES OF YOUR DECISION, JUST AS YOU WOULD WHEN MAKING ANY OTHER IMPORTANT BUSINESS OR LIFE DECISION.

  1. How This Arbitration Provision Applies.

Except as it otherwise provides, this Arbitration Provision is intended to apply to the resolution of disputes that otherwise would be resolved in a court of law or before any forum other than arbitration, with the exception of proceedings that must be exhausted under applicable law before pursuing a claim in a court of law or in any forum other than arbitration. Except as it otherwise provides, this Arbitration Provision requires all such disputes to be resolved only by an arbitrator through final and binding arbitration on an individual basis only and not by way of court or jury trial, or by way of class, collective, or representative action.

  1. Limitations On How This Agreement Applies.

The disputes and claims set forth below shall not be subject to arbitration and the requirement to

arbitrate set forth in this Arbitration Provision shall not apply:

Claims for workers’ compensation, state disability insurance and unemployment insurance benefits, Regardless of any other terms of this Agreement. Disputes that may not be subject to a pre-dispute arbitration agreement pursuant to applicable Federal law or Executive Order are excluded from the coverage of this Arbitration Provision, Disputes regarding your, the Company’s, or Instaglam Express (Pty) Ltd’s intellectual property rights.

iii.            Selecting The Arbitrator and Location of the Arbitration.

The Arbitrator shall be selected by mutual agreement of Instaglam Express (Pty) Ltd and you. Unless you and Instaglam Express (Pty) Ltd mutually agree otherwise, the Arbitrator shall be an attorney licensed to practice in the location where the arbitration proceeding will be conducted or a retired federal, provincial or state judicial officer who presided in the jurisdiction where the arbitration will be conducted. The location of the arbitration proceeding shall be no more than 80 kilometers from the place where you last provided Services under this Agreement, unless each party to the arbitration agrees in writing otherwise.

  1. Paying for The Arbitration.

Each party will pay the fees for his, her or its own attorneys, subject to any remedies to which that party may later be entitled under applicable law (i.e., a party prevails on a claim that provides for the award of reasonable attorney fees to the prevailing party). In all cases where required by law, the Company will pay the Arbitrator’s and arbitration fees. If under applicable law the Company is not required to pay all of the Arbitrator’s and/or arbitration fees, such fee(s) will be apportioned equally between the Parties or as otherwise required by applicable law. However, you will not be required to bear any type of fee or expense that you would not be required to bear if you had filed the action in a court of law. Any disputes in that regard will be resolved by the Arbitrator as soon as practicable after the Arbitrator is selected, and the Company shall bear all of the Arbitrator’s and arbitration fees until such time as the Arbitrator resolves any such dispute.

Your Right to Opt Out of Arbitration.

Arbitration is not a mandatory condition of your contractual relationship with Instaglam Express (Pty) Ltd. If you do not want to be subject to this Arbitration Provision, you may opt out of this Arbitration Provision by notifying Instaglam Express (Pty) Ltd in writing of your desire to opt out of this Arbitration Provision, either by (a) sending, within 30 days of the date this Agreement is executed by you, electronic mail to INFO@INSTAGLAMXPRESS.COM, stating your name and intent to opt out of the Arbitration Provision or (b) by sending a letter to Number 2 Hans Schoeman Street, Malanshof, Johannesburg, 2194.

In order to be effective, the letter under option (b) must clearly indicate your intent to opt out of this Arbitration Provision, and must be dated and signed. The envelope containing the signed letter must be received (if delivered by hand) or post-marked within 30 days of the date this Agreement is executed by you. Your writing opting out of this Arbitration Provision, whether sent by (1) or (2), will be filed with a copy of this Agreement and maintained by the Company. Should you not opt out of this Arbitration Provision within the 30-day period, you and the Company shall be bound by the terms of this Arbitration Provision. You have the right to consult with counsel of your choice concerning this Arbitration Provision. You understand that you will not be subject to retaliation if you exercise your right to assert claims or opt-out of coverage under this Arbitration Provision.

By clicking “Terms and Conditions”, you expressly acknowledge that you have read, understood, and taken steps to thoughtfully consider the consequences of this Agreement, that you agree to be bound by the terms and conditions of the Agreement, and that you are legally competent to enter into this Agreement with Company.