1. USE OF VHUB
Finloc 2000 Inc. (the “Company” or “vHub”) provides an online sharing platform that connects owners (the “Owners”) of commercial equipment (the “Equipment”) with potential services providers seeking to generate revenue by offering Equipment repositioning services (the “Service Providers”). The terms “we”, “us”, and “our” used in the Terms also refer to the Company. The term “you” and “your” refer to users of the vHub platform, including Owners and Service Providers, as the case may be. VHub is a marketplace that connects Owners and Service Providers. We do not ourselves lease or offer Equipment or Repositioning Services. vHub is available online at www.vhubapp.com and as a mobile application available through the Apple App Store and the Google Play Store. The vHub website and mobile application and associated services are collectively referred to as the “Services”. Your use of vHub is subject to the following terms and conditions of use (the “Terms”) and all laws applicable to the Services. By accessing or using vHub, you accept, without limitation or qualification, the Terms. If you do not agree with any of the Terms, please do not use the Services.
IMPORTANT NOTICE REGARDING ARBITRATION FOR US TRANSACTIONS (AS DEFINED IN SECTION 27 HEREOF): WHEN YOU AGREE TO THESE TERMS YOU ARE AGREEING (WITH LIMITED EXCEPTION) TO RESOLVE ANY DISPUTE BETWEEN YOU AND VHUB THROUGH BINDING, INDIVIDUAL ARBITRATION RATHER THAN IN COURT. PLEASE REVIEW CAREFULLY SECTION 27 “DISPUTE RESOLUTION” BELOW FOR DETAILS REGARDING ARBITRATION (INCLUDING THE PROCEDURE TO OPT OUT OF ARBITRATION).
Changes to Terms or Services: Technology and the Services, as well as the laws applicable to them, frequently change. Accordingly, the Company reserves the right to update the Terms (or any portion thereof) applicable to the Services at any time, and from time to time, at the Company’s sole discretion. We will notify you of any such updates to the Terms by sending you a notification via vHub, your continued use of the Services will require your acceptance of the new terms and other policies, as modified, and upon acceptance, you will be bound by said new terms and policies.
The Services are available in Canada and the United States only. The Services are not intended for access or use outside Canada or the United States, and as further restricted by the Owner for any given Equipment. Notwithstanding the foregoing, the use of the Equipment shall be subject to the terms and conditions applicable to each Repositioning Agreement (as defined below) and the applicable Service Providers’ and Owners’ insurance. You are solely responsible for ensuring that your access to vHub and the information and material available on or through it are legal in each jurisdiction in or through which you access or view vHub and such information and material.
2. ACCEPTABLE USE POLICY
As a condition of your use of the Services, you hereby represent and warrant to the Company that you:
- will not request, accept or make any payment for fees outside of the Services. If you do so, you acknowledge and agree that you: (i) would be in breach of these Terms; (ii) accept all risks and responsibility for such payment, and (iii) hold vHub harmless from any liability for such payment;
- will not discriminate against or harass anyone on the basis of race, national origin, religion, gender, gender identity, physical or mental disability, medical condition, marital status, age or sexual orientation, or otherwise engage in any violent, harmful, abusive or disruptive behavior in connection with your use of the Services;
- have the necessary authority to enter into these Terms and be bound by the Terms;
- agree to honor our intellectual property rights;
- agree to provide us with accurate information as necessary for the proper conduct of the Services and to take responsibility for the information you provide;
- acknowledge that we may be unable to process and shall have no responsibility to process requests the accuracy of which we cannot validate;
- agree not to create a link (other than personal “bookmark” or “favorites” entry) to vHub without first obtaining our written permission;
- will not access, tamper with, or use non-public areas of the Services, vHub’s computer systems, or the technical delivery systems of vHub’s providers;
- will not attempt to probe, scan or test the vulnerability of any vHub system or network or breach any security or authentication measures;
- will not bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by vHub or any of vHub’s providers or any other third party (including another user) to protect the Services;
- will not create extensions of, products related to, or that interoperate with, the Services, except to the extent that such restriction is expressly prohibited by law without possibility of contractual waiver;
- will refrain from using profane, vulgar, inflammatory, libelous, or similarly discourteous language in any e-mail or form entry created through vHub;
- will not to interfere or attempt to interfere with the operation of the Services in any way through any means or device including, but not limited to, spamming, hacking, uploading computer viruses or time bombs, or other means expressly prohibited by any provision of the Terms; and
- will not interfere with anyone’s ability to use or enjoy the Services, or aid or encourage any activity prohibited by these Terms.
Our Services are intended solely for persons who have reached the legal age of majority in their respective state, province or territory. Any use of the Services by anyone under the applicable age of majority is expressly prohibited. If you use the Services, you represent and warrant that you are of legal age to enter into any agreement through vHub and become bound by its terms and are otherwise legally permitted to use the Services.
5. USER ACCOUNT AND REGISTRATION
In order to access the Services, you must sign-up for an account with us by providing all required information and documentation, including without limitation the following information relating to any Equipment you list: the year, make, model, and vehicle identification number for each Equipment. You are responsible for maintaining the confidentiality of your account and password and for restricting access to your computer, mobile device and your account, and you agree to accept responsibility for all activities that occur under your account or password. The Company reserves the right to refuse service, terminate accounts or cancel Service Offers (defined below) in its sole discretion.
When you list Equipment (a “Listing”) or accept a Service Offer (as defined below), you provide us with certain information about yourself to enable us to verify your identity and with regards to the Equipment, if applicable. You covenant to provide complete and accurate information to the Company about yourself and your Equipment, if applicable. The Company has the right, but not the obligation, to undertake screenings, checks, and processes designed to help verify or check the identities and/or backgrounds of the Owners, Service Providers and Equipment, including driving history of any registered driver and driver’s license validity. The Company does not endorse any Equipment, Service Provider or Owner or their respective backgrounds, or commit to undertake any specific screening process. We reserve the right to accept or reject any Listing or Service Offer in our sole and absolute discretion. Notwithstanding any information made available by the Owner or the Service Provider through the Services, we do not make any representations about, confirm, or endorse any information, including with respect to the safety or roadworthiness of any Equipment beyond our policies that require Owners to provide certain information with regards to their Equipment.
7. YOUR INFORMATION
You undertake to update the information you have provided on vHub in the event of any changes. Specifically with respect to your contact information, the Company may deliver notices to you at the most recent email, telephone, or address provided by you, and those notices will be considered valid even if you no longer maintain the email account, telephone number, or receive mail at that address unless you provide updated contact information to us. You are, and will be solely responsible for, all of the activity that occurs through your vHub account, except to the extent caused solely by the gross negligence or willful misconduct of vHub, so please keep your password and account information secure. You agree that you will not disclose your password to any third party and that you will be solely responsible for any activities or actions under your vHub account, whether or not you have authorized such activities or actions. You will immediately notify the Company of any actual or suspected unauthorized use of your vHub account. We are not responsible for your failure to comply with this Section, or for any delay in deactivating your account after you have reported unauthorized access to us.
Owners will list Equipment available for repositioning services by Servicer Providers (“Repositioning Services”) on vHub through Listings. Listings must include (i) the exact location of the Equipment, including the address, (ii) a physical description of the Equipment, including the vehicle identification number and plate number, (iii) disclose any deficiencies, restrictions (such as Equipment rules) and requirements that apply, and (iv) provide any other pertinent information requested by vHub (collectively, “Equipment Information”). The Listing must also provide the exact dates and times that each Equipment may be available for pick-up (“Pick-Up”) and the exact location where the Equipment must be returned following its use (“Drop-Off”) (the time of the Repositioning Services as contemplated by the Listing, the “Service Period”). The Listing must indicate whether Pick-Up and/or Drop-Off must be “attended” during specified hours or whether Pick-Up and/or Drop-Off is available on a 24-hour, “unattended” basis and the presence of a lock box containing the Equipment keys or other specified method for unattended Pick-Up and/or Drop-Off. This availability may be updated on an ongoing basis.
The availability of Equipment may be limited, and Equipment may not be available for given periods of time. An Owner may revise a Listing or cease to make available any Equipment at any time without prior notice. In the event that an Owner no longer requires the Repositioning Services you will be notified via vHub and the Owner, at its sole discretion may, (i) substitute the unavailable Equipment with a similar one; or (ii) cancel the Repositioning Services at any time prior to 24 hours prior to the Pick-Up. The Company is not responsible for the accuracy of the description of any Equipment or Equipment Information made available by Owners through the Services. Further, the Company does not warrant that Equipment, Equipment Information, Owner or Service Provider descriptions, information, profiles or other content on vHub are accurate, complete, reliable, current or error-free. Owners are solely responsible for keeping their Listings up-to-date at all times, including ensuring that the Equipment Information accurately represents the Equipment identified in the Listing and the Service Period accurately reflects the Equipment’s availability. Owners agree that they will stop using Equipment Information on or through the Services if it no longer accurately represents the Listing, if Owners stop offering the Listing, or if the Owner account is terminated or suspended for any reason.
9. REPOSITIONING SERVICES
Services Providers can offer Repositioning Services in relation to Equipment requiring repositioning from among such Equipment made available by the Owners on vHub through the Listings for the desired Service Period (the “Service Offer”). Owners can pay for the Repositioning Services using the methods of payment set forth in Section 13.
Before submitting a Service Offer, you will be shown a confirmation screen (the “Confirmation”) containing the specific terms, describing among other things, the term of the Repositioning Services, the Equipment subject to the Repositioning Services, the service fees and any additional charges for taxes and other applicable fees, the Pick-Up and Drop-Off locations of the Equipment and any other terms and conditions applicable to the Repositioning Services (collectively, the “Repositioning Agreement”).
When a Service Offer is submitted by a Service Provider unless the Service Offer is rejected by the Owner, such Owner is entering into a legally binding Repositioning Agreement with the Service Provider and is required to provide the Equipment to the Service Provider as described in the applicable Listing when the Service Offer is made. Owners understand that an accepted Service Offer of their Equipment is a limited permission granted to the Service Provider by such Owner to enter, occupy and use the Equipment in a lawful manner for driving on paved roads, unless otherwise provided in the Repositioning Agreement, for the duration of the Service Period.
When an Owner lists the Equipment and when a Service Provider submits a Service Offer, this will constitute each party’s respective acceptance of the Repositioning Agreement. Once the acceptance has occurred the Owner and Service Provider shall each be a party to the Repositioning Agreement that shall become effective at the time of Activation (as defined below) and terminate on the time of Deactivation (as defined below). The relationship between the Owner and Service Provider with regard to any Equipment that is the object of the Repositioning Services shall be subject to and governed by the applicable Repositioning Agreement and the Master Repositioning Agreement, which is attached to these Terms, the terms of which are hereby incorporated herein by reference. By accepting a Service Offer as an Owner or by submitting a Service Offer as a Service Provider, you agree that your use of the Services and any Equipment identified in the Listing is subject to the Master Repositioning Agreement.
VHUB AND ITS CONTENTS ARE NOT TO BE CONSTRUED AS AN OFFER TO SELL ANY PRODUCT OR SERVICE.
10. EQUIPMENT INSPECTIONS
During the Pick-Up and Drop-Off, respectively, the Service Provider must activate the Repositioning Services (“Activation”) or deactivate the Repositioning Services (“Deactivation”) based on the information and the procedures outlined in the Confirmation. The Service Provider must inspect and assess the Equipment for any mechanical defects and/or signs of damage, including but not limited to, damage to the bodywork, wheels, interior, electrical or mechanical functions of the Equipment. The Service Provider must follow all pre-trip and post-trip inspection procedures provided by the Owner and/or as required by the applicable law, including procedures for providing the completed inspection report and documenting all pre-trip and post-trip damage. If the Service Provider deems the Equipment to be unsuitable for use, it may cancel the Service Offer through vHub. The Owner shall not knowingly provide Equipment affected by a major mechanical defect, as defined by the applicable law, or that is unfit to be operated. The Service Provider shall refuse to operate the Equipment if it is affected by a major mechanical defect or is unfit to be operated.
All prices and Service Offers are quoted and shall be processed in the currency specified in the applicable Listing. Although the Company and Owners strive to provide accurate pricing information, errors may occur. Owners reserve the right to correct any errors in pricing or other information and to modify the prices, at any time, without prior notice. Owners cannot confirm the pricing for a Service Offer until after you submit a Service Offer. In the event that the price or related information for a Service Offer (as described on vHub and/or the Confirmation) is incorrect due to an error in pricing or other information, the Company or an Owner may, at its sole discretion, refuse or cancel the Service Offer, whether before or after the Owner’s acceptance thereof. If there is such an error in pricing, the Company will cancel your Service Offer, then contact you to ask you to place a new Service Offer at the correct price.
The Company reserves the right, in its sole discretion, to limit quantities, terminate accounts and to refuse or cancel any Listing or Service Offer, including after a Service Offer has been submitted, whether or not the Service Offer has been confirmed or accepted and whether or not your credit card has been charged.
In particular, and without limiting the generality of the foregoing, the Company may refuse to accept any Service Offer for any reason, including if fraudulent activity is suspected. Without limiting the generality of the foregoing, the Company may refuse to process subsequent Service Offers to Owners with a previous fraudulent order history or history of non-payment. The Company may also refuse any Service Offer connected with a previous credit card dispute.
The Company may also require additional verifications or information before accepting any Service Offer. The Company will contact you if your Service Offer is rejected after your Service Offer has been placed or if additional information is required to accept your order.
13. PAYMENT TERMS
Terms of payment for any Repositioning Services made through vHub shall be determined at the Company’s sole discretion.
Payment shall be made by Owners by any one of the payment methods available on vHub, which are subject to change without prior notice. Currently, acceptable payment methods include funds withdrawal by the Company from Owner’s bank account. The amount for a Repositioning Service will be charged upon Deactivation. It is agreed and understood that the amount listed in a Service Offer will be an estimated fee only and the actual amount of the Repositioning Services will only be determinable and adjustable once the Repositioning Services are complete (based on length of the Service Period). Please refer to our Payment Terms for more details, the terms of which are hereby incorporated herein by reference.
All Repositioning Service fees shall be collected from the Owner by the Company on account of the Service Provider. The Company will remit the fees collected on account of the Service Provider net the Company’s services fee (as set forth on vHub), taxes and any other applicable fees or deductions. The Company shall not be responsible for any fees that are uncollectible by the Company and the Company shall only remit amounts that are actually collected from Owners by the Company. The Company makes no representation or warranty with regards to the collectability of any fees.
Unless otherwise stated, all prices quoted do not include applicable taxes. Separate charges for taxes will be shown on the Service Offer for each Repositioning Service, as applicable. Service Providers shall be responsible for charging all sales, use, goods and services, harmonized sales, and other taxes and duties associated with their Repositioning Services. The Company will collect taxes from the Owners on account of the Service Providers and remit such taxes to the appropriate tax authority. For Service Providers who are residents of Canada only: Service Providers hereby acknowledge and agree that they will provide a duly completed copy of Revenu Quebec form FP-2506 to the Company by uploading a copy to vHub.
15. CONSENT TO USE ELECTRONIC DOCUMENTS
You hereby consent to the exchange of information and documents between you, the Company and the Owner or Service Provider, as applicable, over the Internet or by e-mail, and you agree that the Terms, together with any applicable Confirmation(s) accepted by the Company or the Owner in electronic form shall be the equivalent of an original written paper agreement. You further agree that all agreements, notices, disclosures and other communications that we may provide to you electronically satisfy any legal requirement that such communications be in writing.
Financial Responsibility: Except as otherwise provided herein, you acknowledge that you are solely liable for your liabilities relating to the Services. Service Providers hereby assumes all risks of physical loss or damage to Equipment resulting from any cause whatsoever and all risks of third-party liability and property damage resulting from the Equipment or Service Providers’ use of the Services. You may fund that liability via any personal or corporate insurance you have available to you as the primary source of funds. Notwithstanding the foregoing, nothing herein is intended to limit your responsibilities or the Company’s legal rights in connection with your use of the Services.
Insurance Coverage: Service Providers shall be responsible for maintaining the insurance coverages set forth in the Master Repositioning Agreement. You hereby agree to also obtain and maintain automobile insurance and general liability insurance for limits of not less than $2,000,000 per occurrence or such other limits as Owner may reasonably require covering damages as a result of bodily injury and property damage caused by the Equipment, its condition, possession, maintenance, operation and use.
Service Provider – Proof of Insurance: It is the Service Provider’s sole responsibility to pay all insurance premiums and take all other actions that are necessary or advisable to maintain the insurance coverage required under this Section. Service Providers acknowledge and agree that they will provide the necessary proof of insurance by uploading a copy of their insurance certificate using vHub. Service Providers further undertake and agree to immediately update their insurance information contained on vHub in the event of any alteration, cancellation or non-renewal of the required insurance coverage or policies.
Owner-Specific Requirements: Notwithstanding anything contained herein, it is the sole responsibility of the Owner to evaluate the accuracy, sufficiency and validity of the insurance coverage and proof of insurance provided by the Service Providers on vHub. Please review any respective insurance policy carefully, and in particular make sure that you are familiar with and understand any exclusions to, and any deductibles that may apply for, such insurance policy, including, but not limited to, whether or not your insurance policy will cover the actions of any Service Providers while using your Equipment in connection with the Services and any exclusions or exceptions for commercial, professional, non-personal driving if such exclusion is applicable. The Owner may, at its sole and absolute discretion, refuse to accept any Service Offer from a Service Provider, for any reason whatsoever, including for insufficient or unsatisfactory insurance coverage or proof of insurance.
THE COMPANY MAKES NO REPRESENTATION OR WARRANTY REGARDING THE INSURANCE COVERAGE OR PROOF OF INSURANCE, ITS ACCURACY, SUFFICIENCY, SUITABILITY FOR USE OR VALIDITY. FOR AVOIDANCE OF DOUBT AND NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, NEITHER ANY INABILITY NOR DENIAL OF AN INSURER TO PAY NOR ANY REVOCATION, CANCELLATION OR MODIFICATION OF AN INSURANCE POLICY SHALL RESULT IN THE LIABILITY OF THE COMPANY AND IN NO CIRCUMSTANCE SHALL THE COMPANY PROVIDE ANY INDEMNIFICATION HEREUNDER.
17. EXCLUSION AND DISCLAIMER OF WARRANTIES
THE COMPANY MAKES NO REPRESENTATION OR WARRANTY REGARDING THE FUNCTIONALITY, THE GOOD WORKING ORDER OR CONDITION OF THE VHUB PLATFORM, ITS SUITABILITY FOR USE, OR THAT ITS USE, OR ANY INFORMATION OR MATERIAL, INCLUDING ANY DOWNLOADABLE SOFTWARE, ACCESSED FROM OR THROUGH VHUB WILL BE UNINTERRUPTED OR ERROR-FREE. THE COMPANY DOES NOT REPRESENT, WARRANT OR UNDERTAKE THAT ANY ERRORS ON OR RELATING TO VHUB WILL BE CORRECTED, OR THAT ANY SERVER FROM WHICH THE SITE IS OPERATED IS OR WILL BE FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS.
VHUB AND ITS CONTENTS ARE NOT TO BE CONSTRUED AS AN OFFER TO SELL ANY PRODUCT OR SERVICE.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE COMPANY MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, REGARDING THE SUITABILITY OF ANY LISTING THAT OFFERS EQUIPMENT VIA THE SERVICES OR THE EXISTENCE, QUALITY, SAFETY OR ROAD WORTHINESS OF ANY EQUIPMENT. VHUB HAS NO CONTROL OVER AND DOES NOT GUARANTEE REGARDING THE EQUIPMENT, THE OWNER, THE SERVICE PROVIDER, OR EQUIPMENT INFORMATION PROVIDED ON VHUB RELATING TO OR ARISING OUT OF ANY SERVICES. FOR AVOIDANCE OF DOUBT, THE COMPANY SHALL HAVE NO LIABILITY RELATED TO ANY DAMAGE TO OR CAUSED BY THE EQUIPMENT OR THE USE THEREOF OR BY THE OWNERS OR THE SERVICE PROVIDERS. THE COMPANY IS NOT ACTING AS A MANDATARY OF THE OWNER, THE SERVICE PROVIDER OR ANY OTHER PARTY. PERTAINING TO THE EQUIPMENT, THE COMPANY IS NOT A PARTY TO A TRANSPORTATION AGREEMENT, NOR IS IT A MOTOR CARRIER, A SHIPPER, A CONSIGNOR, A CONSIGNEE, A FREIGHT FORWARDER OR A TRANSPORT SERVICE INTERMEDIARY.
YOU AGREE THAT YOUR SHARING AND/OR USE OF EQUIPMENT MAY CARRY INHERENT RISK, AND BY POSTING A LISTING, MAKING A SERVICE OFFER, OR USING THE SERVICES, YOU CHOOSE TO ASSUME THOSE RISKS VOLUNTARILY. YOU ASSUME FULL RESPONSIBILITY FOR THE CHOICES YOU MAKE BEFORE, DURING AND AFTER THE APPLICABLE SERVICE PERIOD.
BECAUSE CERTAIN FEDERAL OR PROVINCIAL LAWS DO NOT PERMIT THE EXCLUSION OF CERTAIN WARRANTIES, THESE EXCLUSIONS MAY NOT APPLY TO YOU.
THIS SECTION SHALL SURVIVE THE TERMINATION OR EXPIRY OF THESE TERMS.
By using the Services you hereby agree to indemnify, defend and hold harmless the Company from and against any and all losses, damages, liabilities, and claims and all fees, costs, expenses, of any kind related thereto (including, without limitation, reasonable attorneys’ fees) incurred by the Company in connection with any claim arising out of, based upon or resulting from your use of the Services, including without limitation: your negligence, willful misconduct, and violation of applicable law, your Listing, your Equipment Information, your Materials (as defined below) or any Equipment, including in each instance, any intellectual property infringement in connection therewith, and any Equipment damage or personal injury, death or property damage caused by the Equipment to anyone or anything, except to the extent caused by the gross negligence or willful misconduct of the Company. The Company reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you and you shall not, in any event, settle any matter without the written consent of the Company.
FOR THE PURPOSES OF THIS SECTION, “COMPANY” SHALL INCLUDE THE COMPANY’S RESPECTIVE DIRECTORS, OFFICERS, OWNERS, EMPLOYEES, AGENTS, MANDATARIES, CONTRACTORS, LICENSORS, LICENSEES, AND THIRD-PARTY SUPPLIERS.
THIS SECTION SHALL SURVIVE THE TERMINATION OR EXPIRY OF THESE TERMS.
19. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE COMPANY BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, HOWEVER, CAUSED AND REGARDLESS OF THE CAUSE OF ACTION UNDER WHICH THEY ARISE, INCLUDING BUT NOT LIMITED TO, ANY LOST DATA, LOST PROFITS, LOST SAVINGS, LOST REVENUE, LOSS OF GOODWILL, LOST BUSINESS OPPORTUNITY, LOSS OF USE OR LACK OF AVAILABILITY OF FACILITIES INCLUDING COMPUTER RESOURCES, ROUTERS, AND STORED DATA, ARISING OUT OF OR IN CONNECTION WITH THE USE OF THE SERVICES, INCLUDING WITHOUT LIMITATION THE MATERIALS OR INFORMATION PROVIDED THROUGH VHUB, THE SERVICES, THE TRANSACTIONS CONDUCTED ON OR FROM VHUB, DAMAGES TO THE EQUIPMENT (INCLUDING THEFT) OR DAMAGES CAUSED BY EQUIPMENT TO ANYTHING OR ANYONE, EVEN IF THE COMPANY OR ANY OF ITS LAWFUL AGENTS, CONTRACTORS, EMPLOYEES OR MANDATARIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR CLAIM. WITHOUT LIMITING THE FOREGOING, VHUB SHALL HAVE NO LIABILITY FOR ANY (I) LOSS OF, OR DAMAGE TO, ANY GOODS IN OR ON THE EQUIPMENT OR IN OR ON ANY THIRD PARTY VEHICLE, (II) LOSS, DAMAGE, INJURY, OR DEATH IN RELATION TO ANY USER OR ANY THIRD PARTY ARISING FROM THE USE OF AN OWNER’S EQUIPMENT, (III) LOSS OR DAMAGE INCURRED BY THE USER AS A RESULT OF ANY CLAIMS MADE BY A THIRD PARTY (EXCEPT TO THE EXTENT THAT IT IS INDEMNIFIABLE PURSUANT TO SECTION 18) (IV) LOSS OR DAMAGE INCURRED BY THE USER ARISING FROM OR IN RELATION TO EITHER (A) THE SERVICE OFFER RELATING TO, SUPPLY, OPERATION OR USE OF EQUIPMENT BOOKED VIA A LISTING OR (B) ANY EQUIPMENT ACCESSORIES, OR (V) BREACH BY A PARTY TO THE MASTER REPOSITIONING AGREEMENT.
IN PARTICULAR, AND WITHOUT LIMITING THE PRECEDING PARAGRAPH, IN NO EVENT WILL THE COMPANY BE LIABLE TO YOU FOR DAMAGES OR LOSSES RESULTING FROM VIRUSES, DATA CORRUPTION, FAILED MESSAGES, DAMAGES ARISING AS A RESULT OF TRANSMISSION ERRORS OR PROBLEMS, TELECOMMUNICATIONS SERVICE PROVIDERS, THE COMPANY’S CONTRACTORS, THE INTERNET BACKBONE, THIRD-PARTY SUPPLIERS OF SERVICES (INCLUDING OWNERS), DAMAGES OR LOSSES CAUSED BY YOU, OR YOUR RESPECTIVE EMPLOYEES, AGENTS, MANDATARIES OR SUBCONTRACTORS, OR OTHER EVENTS BEYOND THE REASONABLE CONTROL OF THE COMPANY.
IF, DESPITE THE LIMITATIONS ABOVE, THE COMPANY IS FOUND LIABLE FOR ANY DAMAGE OR LOSS IN CONNECTION WITH THE SERVICES, TO THE MAXIMUM CASE PERMITTED BY APPLICABLE LAW, IN NO CASE WILL THE COMPANY’S TOTAL LIABILITY ARISING UNDER ANY CAUSE WHATSOEVER BE FOR MORE THAN, IN THE AGGREGATE, THE LESSER OF $100 OR THE AMOUNT PAID BY YOU FOR THE SPECIFIC SERVICES PURCHASED BY YOU AND TO WHICH THE CLAIM RELATES. THE LIMITATIONS OF LIABILITY IN THIS PARAGRAPH WILL NOT APPLY TO THE EXTENT CAUSED BY GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
CERTAIN FEDERAL, STATE, OR PROVINCIAL LAWS MAY NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
FOR THE PURPOSES OF THIS SECTION, “THE COMPANY” SHALL INCLUDE THE COMPANY’S RESPECTIVE DIRECTORS, OFFICERS, SHAREHOLDERS, EMPLOYEES, AGENTS, MANDATARIES, CONTRACTORS, AND THIRD-PARTY SUPPLIERS. THIS SECTION SHALL SURVIVE THE TERMINATION OR EXPIRY OF THESE TERMS.
20. COPYRIGHTS AND TRADEMARKS
Material on vHub, including but not limited to texts, images, illustrations, articles, photographs, software, audio clips and video clips, is owned or otherwise provided by the Company, and the Company does not represent or warrant that such material does not infringe the rights of any other person or entity. The material on vHub is protected by the copyright law and by virtue of the applicable international conventions and treaties. The Company is the owner of the copyright in vHub and, consequently, the material on vHub may not be copied, reproduced, republished, downloaded, posted, transmitted, distributed or modified, in whole or in part in any form whatsoever, including but not limited to text, audio or video, without the prior written consent of the Company. Trademarks, logos and service marks (collectively, the “Marks”) displayed on vHub are registered or unregistered Marks of the Company or others, are the property of their respective owners, and may not be used without written permission of the owner of such Marks. Nothing in vHub is to be interpreted as conferring a right to use the Marks or the material protected by the Copyright Act (Canada) or equivalent legislation.
Notwithstanding the foregoing, the Company authorizes you to make one electronic or paper copy of the information posted on any page of vHub provided that the copy is used solely for non- commercial, personal business purposes and, in each and every case, provided that any such copy remains protected by all copyright, trademarks, service marks and other proprietary notices and legends contained on any such page of vHub. This license does not include any resale of vHub or its contents; any collection of product listings, descriptions or prices; any other derivative use of vHub or its contents; any downloading or copying of information for the benefit of any merchant; or any use of data mining, robots, or similar data gathering and extraction tools. You may not frame or utilize framing techniques to enclose any page on vHub or any trademark, logo or other proprietary information (including images, text, page layout, or form) of the Company without express written consent of the Company. You may not use any meta tags or any other “hidden text” utilizing the Company’s name or trademarks without the express written consent of the Company. Any unauthorized use of the vHub and/or its contents terminates the permission or license granted by the Company.
Except as otherwise may be expressly provided herein, nothing contained in the Terms shall be construed as conferring by implication, estoppel or otherwise any license or right under any present and future copyright, patent, trademark or other intellectual property right of the Company or any other person or entity.
21. YOUR MATERIAL AND MARKS
The Company is not responsible for the accuracy or completeness of any text, image, video, audio, or any information, content, Marks or other materials you may introduce into or post through vHub or any other Company websites (collectively, your “Material”). You acknowledge and agree that your Material does not necessarily reflect the views, ideas or opinions of the Company or any of its divisions, affiliates, subsidiaries, directors, officers, employees, agents, contractors and suppliers and that we disclaim any and all responsibility for any of your Material.
Any Material provided by you remains your property. However, by posting messages, uploading files, inputting data or engaging in any other form of communication to or within vHub, you hereby grant the Company a perpetual, worldwide, irrevocable, non-exclusive, royalty-free license to use, copy, license, sublicense, adapt, distribute, display, publicly perform, reproduce, transmit modify, edit and otherwise exploit the content of your communications and any ideas or original materials contained therein, in all media now known or hereafter developed by vHub (a) to the extent necessary to provide and enhance the Services; and (b) to create aggregated and anonymized market research statistics and insights in respect of the customers that use vHub. You hereby waive all rights you may have to inspect and/or approve of any use by the Company of any material or ideas submitted by you or the right to receive any compensation for such use. You waive all rights to any claim against the Company for any alleged or actual infringements of any proprietary rights, rights of privacy and publicity, moral rights, and rights of attribution in connection and conformance with any of the foregoing. The Company may not use any of your trade names, trademarks, or logos without your prior consent, it being understood that any decision made by you to upload or use your trade names, trademarks, or logos on vHub shall be deemed made with your consent. You agree and understand that the Company is under no obligation to use any material or ideas submitted by you in any way whatsoever.
Without limiting the generality of the foregoing, any photographs you upload to vHub should depict the Equipment as the main subject of the photograph and may not include children or adults if you do not have their legal consent or any information or images that would violate the privacy rights, intellectual property rights (including but not limited to trademark and copyright rights) or any other rights of a third party. We reserve the right to not display or to remove any photographs that we determine, in our sole discretion, do not meet these Terms or are otherwise unacceptable to us.
You are solely responsible for all your Material. You represent and warrant that you have (and will have) all rights that are necessary to grant us the license rights in your Material under these Terms. You represent and warrant that neither your Material, nor your use and provision of your Material to be made available through the Services, nor any use of your Material by vHub on or through the Services will infringe, misappropriate or violate a third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
You can remove your Material by specifically deleting it. You should know that in certain instances, some of your Material (such as posts or comments you make) may not be completely removed and copies of your Material may continue to exist on the Services. To the maximum extent permitted by law, we are not responsible or liable for the removal or deletion of (or the failure to remove or delete) any of your Material.
22. FEEDBACK; CONFIDENTIALITY; DATA PRIVACY AND SECURITY
Other than your account information and your information needed to render the Services, the Company does not wish to receive Material from you that is confidential, secret or proprietary information.
We appreciate feedback, comments, ideas, proposals and suggestions for improvements to the Services (“Feedback”). If you choose to submit Feedback, you agree that we are free to use it without any restriction or compensation to you provided however, that Company shall not, without your prior approval, use the Feedback to the extent a third-party reviewing the Feedback could identify you or your customers.
Furthermore, you acknowledge that unprotected e-mail communications and other transmissions over the Internet are not confidential and may be subject to possible interception, alteration or loss. You acknowledge and agree that by submitting any such communications to the Company or vHub, no confidential, fiduciary, contractually implied or other relationship is created between you and the Company other than pursuant to the Terms. The Company shall not be responsible for the payment of any monies to any other party in connection with the Company’s use of any information or material provided by you to the Company or vHub. You also represent and warrant that any and all such information or Material which you provide to the Company, whether provided by you electronically by accessing or using the Services or otherwise, and the Company’s use of this information and Material so provided as permitted in the Terms, does not infringe the rights of any other person or entity.
In the course of performance of these Terms, the parties may exchange confidential information, including but not limited to, (i) business, marketing, operations and/or technical information, (ii) financing documents, dealings and arrangements, disclosed by either party which is marked with a confidential or proprietary data legend indicating that such information is the confidential information of the disclosing party (“Confidential Information”). The term Confidential Information shall also include (a) location and customer data, other than on an aggregated basis, (b) Personal Data (as defined hereunder), and (c) any other information which by its nature or the circumstances surrounding its disclosure would reasonably be considered confidential.
During the term of these Terms and for a period of three (3) years following the closure of the user account, the receiving party shall exercise the same degree of care to prevent unauthorized use or disclosure of Confidential Information to others as it takes to preserve and safeguard its own Confidential Information, but in any event, no less than a reasonable degree of care. The receiving party shall use the Confidential Information of the disclosing party only for the purpose of enabling each of the parties to perform its business relationship with the other as described in these Terms. The receiving party shall not directly or indirectly disclose such Confidential Information to any person or company without the prior written approval of the disclosing party; provided however, that the receiving party may disclose the Confidential Information to its (i) employees who have a need to know such Confidential Information in connection with these Terms, namely in order to render the Services, or (ii) agents, mandataries, contractors or suppliers who have executed a nondisclosure agreement affording at least the same confidentiality obligations as described herein.
The restrictions on the receiving party’s use and disclosure of Confidential Information shall not apply to any Confidential Information which the receiving party can demonstrate: (i) is wholly and independently developed by the receiving party without the use of Confidential Information of the disclosing party; (ii) is or has become generally available to the public without breach of these Terms by the receiving party; (iii) at the time of disclosure, was known to the receiving party and free of restriction; or (iv) is approved for release by written authorization of the disclosing party.
Disclosure of Confidential Information in response to a valid order of a court or other governmental agency shall not be a breach of this Section, if the disclosure is limited to the extent of and for the purposes of such order; provided, however, that the receiving party shall first notify the disclosing party in writing of the order and permit the disclosing party to seek a protective order, unless such notification is otherwise prohibited by law.
Subject to any information provided by user to Company which has been aggregated, cumulated or integrated into unidentifiable proprietary vHub data and statistics, any and all Confidential Information disclosed shall remain the property of the disclosing party. Within ten (10) days following the receipt of a written notice by the disclosing party, the receiving party shall, at the disclosing party’s option, delete and certify that it has deleted, all copies in its possession or control of any and all documents, computer files and other materials that contain any segregated and identifiable Confidential Information of the disclosing party. However, if Company is required by law to retain the Confidential Information or if the Confidential Information is stored in a manner such that it cannot readily be returned or destroyed without affecting other data, then Company shall continue to protect such Confidential Information in accordance with these Terms and limit any use to the purpose of such retention.
Data Privacy and Security:
You hereby represent and warrant to the Company that you have all required third-party consents and authorizations to provide geolocation data to us for our collection and use by the Company.
Data Security Incident Procedures.
Company shall notify you as promptly as reasonably feasible upon becoming aware of a Data Security Incident which may affect you. Company shall provide you with the available information required by applicable Data Protection Laws and for you to comply with your own notification obligations to regulatory authorities or individuals affected by the Data Security Incident. The parties shall cooperate in determining whether notification to affected individuals and/or government authorities is required under applicable Data Protection Laws. If notification is required as a result of the Company’s failure to comply with applicable Data Protection Laws, Company shall pay all reasonable costs of such notifications. For purposes of this Section, a “Data Security Incident” means any accidental, unauthorized or unlawful access, acquisition, theft, destruction, or disclosure of Personal Data that occurs while such Personal Data is in the possession of or under the control of Company, or under the control of a third-party contracted with Company to provide any portion of the Services contemplated by these Terms.
Company agrees to take action without undue delay, at its own expense, to investigate the Data Security Incident and to identify, prevent, and mitigate the effects of the Data Security Incident and to carry out any recovery or other action necessary to remedy the Data Security Incident.
Company shall provide reasonable cooperation and assistance to you to enable you to fulfill your obligations to enable identified Data Subjects affected by the Data Security Incident to exercise their rights under the Data Protection Laws, as the case may be. Company shall notify you, within the regulatory timeframe which requires Company to provide such notification, of all communications Company receives from an affected Data Subject seeking to exercise his/her right in connection with the Data Security Incident.
The Company may monitor the access to vHub (and any other of its websites) and other activities in relation to the Services and may intervene in this regard. However, the Company makes no representation and gives no warranty to that effect. You consent to such surveillance and intervention, if the Company ever decides to do it.
24. LINKS TO OTHER WEBSITES
Links and references to other websites are provided to you as a convenience only. The Company has not reviewed and does not expressly or implicitly endorse other websites or any information or material, or the accessibility thereof, via such links, and does not assume any responsibility for any such other websites, information or material posted thereon, or products or services offered thereon. You may not create links from other websites to vHub, except if expressly permitted by the Company.
25. MODIFICATION OF VHUB; RESERVATION OF RIGHTS
The Company may, for any reason in its sole discretion and without notice to you, terminate, change, suspend or discontinue the Services or any aspect of them, including but not limited to any content, features or hours of availability and Company will not be liable to you or any third party for doing so. The Company may also impose rules for and limits on use of the Services or restrict your access to part, or all, of the Services (including vHub) without notice or liability. All rights not expressly granted in the Terms are reserved to the Company.
The Terms shall inure to the benefit of and be binding upon each of the parties hereto and their respective successors and permitted assigns.
27. GOVERNING LAW AND DISPUTE RESOLUTION
vHub is controlled and operated by the Company from Montréal, Québec, Canada.
With respect to any Listings with a Canadian Owner (a “Canadian Transaction”), the Terms, the Services, any use of the Services and any transaction conducted on or from vHub shall be governed by the laws of the Province of Québec and the laws of Canada applicable therein without reference to principles of conflict of laws. You acknowledge and agree that any dispute that may arise between you and the Company in respect of the Terms and the transactions contemplated herein shall be resolved, in the case of a Canadian Transaction, by the provincial and federal courts and tribunals sitting in the Province of Québec and you hereby irrevocably submit and attorn to the personal and exclusive jurisdiction and venue of these courts.
With respect to any Listings with a US Owner (a “US Transaction”), the Terms, the Services, any use of the Services and any transaction conducted on or from vHub shall be governed by the laws of the State of Delaware and the laws of the United States applicable therein without reference to principles of conflict of laws.
Mandatory Arbitration of Dispute: We each agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services (collectively, “Disputes”) will be resolved solely by binding, individual arbitration and not in a class, representative or consolidated action or proceeding. You and vHub agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of these Terms, and that you and vHub are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of these Terms.
Exceptions and Opt-out: As limited exceptions to the above: (i) we both may seek to resolve a Dispute in small claims court if it qualifies; and (ii) we each retain the right to seek injunctive or other equitable relief from a court to prevent (or enjoin) the infringement or misappropriation of our intellectual property rights.
Conducting Arbitration and Arbitration Rules: The arbitration will be conducted by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by these Terms. The AAA Rules are available at www.adr.org or by calling 1-800-778-7879. A party who wishes to start arbitration must submit a written Demand for Arbitration to AAA and give notice to the other party as specified in the AAA Rules. The AAA provides a form Demand for Arbitration at www.adr.org.
Any arbitration hearings will take place in the county (or parish) where your headquarters are located, unless we both agree to a different location. The parties agree that the arbitrator shall have exclusive authority to decide all issues relating to the interpretation, applicability, enforceability and scope of this arbitration agreement.
Arbitration Costs: Payment of all filing, administration and arbitrator fees will be governed by the AAA Rules, and we won’t seek to recover the administration and arbitrator fees we are responsible for paying, unless the arbitrator finds your Dispute frivolous. If we prevail in arbitration, we’ll pay all of our attorneys’ fees and costs and won’t seek to recover them from you. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses to the extent provided under applicable law.
Injunctive and Declaratory Relief: Except as provided in “Exceptions and Opt-out” above, the arbitrator shall determine all issues of liability on the merits of any claim asserted by either party and may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. To the extent that you or we prevail on a claim and seek public injunctive relief (that is, injunctive relief that has the primary purpose and effect of prohibiting unlawful acts that threaten future injury to the public), the entitlement to and extent of such relief must be litigated in a civil court of competent jurisdiction and not in arbitration. The parties agree that litigation of any issues of public injunctive relief shall be stayed pending the outcome of the merits of any individual claims in arbitration.
Class Action Waiver: YOU AND VHUB AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, if the parties’ dispute is resolved through arbitration, the arbitrator may not consolidate another person’s claims with your claims and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this Dispute Resolution section shall be null and void.
Effect of Changes on Arbitration: Notwithstanding the provisions under “Changes to Terms or Services” in Section 1 above, if vHub changes any of the terms of this “Dispute Resolution” Section after the date you most recently accepted these Terms, you may reject any such change by sending us written notice (including by email to email@example.com) within 30 days of the date such change became effective, as indicated in the “Last Updated” date above or in the date of vHub’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and vHub in accordance with the terms of this “Dispute Resolution” Section as of the date you most recently accepted these Terms.
With the exception of any of the provisions in “Class Action Waiver”, if any one of these conditions shall be deemed invalid, void, or for any reason unenforceable, such condition shall be deemed severable and shall not affect the validity and enforceability of any remaining condition.
The Company makes no representation that materials, information or the Services are appropriate or available for use in other locations or jurisdictions other than Canada and the United States. Those who choose to access vHub from other locations or jurisdictions do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable.
31. NO WAIVER
The failure of either party to enforce any provisions of the Terms or to respond to a breach or default by the other party or any third party of the Terms shall not in any way waive that party’s right to subsequently enforce any of the Terms contained herein or to act with respect to similar breaches or defaults.
32. EXPORT LAWS
Products sold or delivered under the Terms shall be subject to export control laws and regulations of Canada and the United States, including all applicable laws, regulations, and rules that prohibit or restrict the export or re-export of the Services or software, or Material (Service Provider’s/Owner’s data, materials, or information introduced through the Services), outside the United States. You agree that you will complete all undertakings required by such foregoing export laws, regulations, and rules, including obtaining any necessary export license or other governmental approval and to comply at all times with all such laws and regulations. You hereby agree to indemnify, defend and hold the Company harmless against all claims, damages or liability resulting from your breach of the foregoing.
33. ENTIRE AGREEMENT
The Terms, together with all other agreements, terms or conditions incorporated or referred to herein constitute the entire agreement between you and the Company with respect to the use of the Services and any transaction conducted on or from the vHub and its contents, and supersede any
prior understandings or agreements (whether electronic, oral or written) regarding the subject matter hereof, and may not be amended or modified, except in writing or by the Company making such amendments or modifications available to it pursuant to the Terms hereof.
34. NO ASSIGNMENT
You may not assign your rights or obligations herein without the express written consent of the Company.
The Company reserves the right, at its sole discretion, to terminate your access to all or any part of the Services, with or without notice. You agree to cease use of all Services, software, and any other materials provided in connection with the Services, and to return all intellectual property and any confidential information back to Company, upon termination of access to the Services. You may terminate your use of the Services at any time by submitting a request to our customer support team to close your account, subject to completing all accepted Repositioning Services which are still active on vHub and processing all due payments in accordance with the present Terms, our Payment Terms and all applicable Repositioning Agreements which remain in effect. Account closures will be handled by vHub on a case-by-case basis depending on the account activity at the time of the closure request.
The headings used herein are inserted for convenience of reference only and do not affect the construction or interpretation of the Terms herein.
37. CONTACTING US
BY POST MAIL
11505 1st Avenue, Suite 500, Saint-Georges, Quebec, Canada, G5Y 7X3
Attention : Privacy Officer
Last updated: July 30, 2021