Terms and Conditions (NYC Taxi Technology Systems)

Effective Date: June 30, 2023

Terms & Conditions

(NYC Taxi Technology Systems)

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These Terms and Conditions set forth the terms, conditions and agreements governing Customer’s  access to, use of and/or possession of equipment, hardware, software and/or services provided by or on behalf of Creative Mobile Technologies, LLC  pursuant to or in connection with any Order Form (defined below).  By executing an Order Form, or otherwise accessing or using the Solutions (defined below) Customer agrees to be bound by these Terms and Conditions.  If any provision of an Order Form conflicts with any provision of these Terms and Conditions, then these Terms and Conditions shall govern unless expressly stated otherwise in these Terms and Conditions or in the Order Form.

  1. DEFINITIONS.  

Whenever used herein, or in any attachment thereto, the following capitalized terms shall have the meaning set forth below:

“Affiliate” means, with respect to any specified person or entity, any other person or entity that, directly or indirectly controls, is under the control of, or is under such common control with such specified person or entity.  For the purposes of these Terms and Conditions, Arro, Inc. shall be deemed an Affiliate of CMT.

“Agreement” means, collectively, the Order Form executed by Customer and CMT, any attachments and Schedules thereto, and these Terms and Conditions, all of which shall be considered as constituting the complete agreement of the Parties, whether provided separately or collectively;

“Claims” means any and all direct or indirect, demands, claims, actions, causes of action, proceedings, suits, lawsuits, citations, orders, or other legal, regulatory, administrative, or judicial proceedings, notices of violation, filings, investigations, administrative proceedings, other legal proceedings, judgments, assessments, damages, deficiencies, taxes, penalties, fines, obligations, responsibilities, liabilities, payments, charges, losses, costs, and expenses of any kind or character asserted by a third party, including penalties and interest on any amount payable as a result of any of the foregoing, any legal or other costs and expenses incurred in connection with investigating or defending any Claim, and all amounts paid in settlement of Claims;

“CMT”  means Creative Mobile Technologies, LLC and any successor or assign thereof;

“CMT Group” shall mean each of CMT and its Affiliates, and each of their respective employees, directors, officers, members, shareholders, licensors and representatives;

“CMT Authorized Service Center” shall mean a taxicab service center, fleet garage, or other similar facility designated by CMT as qualified to perform services designated by CMT;

“CMT Technology” has the meaning set forth in Section 8 below.

“CMT Technology System” shall mean the Hardware, software, network, and other portions of the system which comprise the Technology System (as defined in Section 2) and are installed in Taxis by CMT or at its direction;

“Customer” shall mean the Customer identified in the Order Form, or the taxicab medallion owner on whose behalf the Order Form is signed pursuant to a valid Power of Attorney. Customer shall not include passengers;

“Customer Representatives and Users” shall mean the  agents, representatives, directors, officers, employees, or Affiliates of Customer; the drivers of any Taxi(s) at any time;  and the contractors, vendors, or other business invitees of Customer or any of its Affiliates that, at any time and from time to time, use or access any part of the CMT Technology System or the Services.

“Dispute” means any dispute, claim, or controversy between or among Customer  or any of Customer’s Affiliates and CMT or any of its Affiliates arising out of or relating in any way to the Agreement or the Solutions, or the interpretation, application, enforcement, breach, termination, or validity of the Agreement (including any claim of inducement of the Agreement by fraud, and including determination of the scope or applicability of the agreement to arbitrate contained in these Terms and Conditions), or the subject matter of the Agreement.

 “E-Hail Platform” means any technology or software platform or application (including the Arro® mobile application) that is owned, operated, or authorized by CMT to enable users thereof to remotely hail, book, summon and/or hire, or otherwise arrange for a ride in, and/or pay for services provided in or by, taxicabs and/or other for-hire vehicles.

“Electronic Payment” shall mean payment by credit card, debit card, or other non-cash means.  

“Fee(s)” means any fees or other amounts which Customer is required to pay pursuant to this Agreement, including without limitation the Monthly Recurring Charges or Transaction Fees;

“Full Replacement Cost” shall mean the complete cost to replace each component of the CMT System up to a total cost of $2,605.00 for the entire CMT System.  For clarity, but without limitation, the Full Replacement Cost does not include any Early Termination Fee, De-Installation Fee or Equipment Re-Inspection Fee (as each such term is defined below).

“Hardware” shall mean equipment or machinery, together with all associated components, media, firmware and other embedded software, and instructions provided, operated or maintained by or for CMT as part of the CMT Technology System;  

“In-Taxi Payment” means any Electronic Payment accepted, made, and/or processed using any Payment System (other than the E-Hail Platform) provided for in any Taxi.

“In-Taxi Transaction Fee” means the percentage and/or amount designated as the “In-Taxi Transaction Fee” or the “Card Present Fee” in the Order Form.  

“Interior Advertising” has the meaning set forth in Section 2 below;

“Intellectual Property Rights” of any person or entity shall mean any and all intellectual property rights of such person or entity, whether registered or unregistered, anywhere in the world, including each of the following throughout the world:  (a) registered and unregistered copyrights and all derivative works thereof; (b) pending and issued patents (including all reissues,  reexaminations, divisionals, continuations, and continuations-in-part); (c) mask work rights and trade secrets as defined by applicable Law; (d) trademarks, trade names and service marks, and (e) all other intellectual property rights;

“Law(s)” means all laws, statutes, codes, ordinances, decrees, rules, regulations, by-laws, statutory rules, principles of law, published policies and guidelines, judicial or arbitral or administrative or ministerial or departmental or regulatory judgments, orders, decisions, rulings or awards and the terms and conditions of any grant of approval, permission, authority or permit of any governmental authority or statutory body. Law includes the TLC Rules.

“Losses” shall mean any and all damages, fines, penalties, judgments, deficiencies, losses, liabilities (including settlements and judgments), fees, costs, Taxes and expenses (including interest, court costs, reasonable fees and expenses of attorneys, accountants, and other experts or other reasonable fees and expenses of litigation or other proceedings or of any claim, default, or assessment); and shall include any and all Claims, whenever and however arising;

“Monthly Recurring Charges” shall be those monthly charges due by Customer as set forth in the Order Form;  

“Order Form” means the Order Form executed concurrently with and comprising a part of this Agreement, and any additional Order Forms agreed upon in a signed writing between the Parties;

“Overpayment” means any amount paid or transferred by or on behalf of CMT or its Affiliates or contract partners to Customer,, Customer"s  Affiliates, any Taxi driver, or any agent or designee of Customer or Customer"s  Affiliates, which is in excess of Transaction Proceeds or other amounts actually due and payable to Customer pursuant to the Agreement. For the avoidance of doubt, Overpayments include any Transaction Proceeds paid to Customer as a result of a Payment that is subsequently reversed or charged back, or that CMT does not receive payment from the applicable payment processor.

“Party” shall mean either CMT or Customer, and “Parties” shall mean both of them collectively;

“Payment” means an In-Taxi Payment or a Platform Payment, as applicable.

“Payment Systems” has the meaning set forth in Section 2 below;

“Payment Equipment” means any hardware and equipment constituting part of the Payment Systems;  

“Platform Payment” means an Electronic Payment for services provided in or by a Taxi that is accepted, made and/or processed via the E-Hail Platform.

“Platform Transaction Fee” means the percentage and/or amount designated as the “ Platform Transaction Fee” or the “Card Not Present Fee” in the Order Form.

“Services” means the services, functions, and responsibilities of CMT described in the Agreement;

“Solutions” means, collectively, the Technology System, the Interior Advertising, the Payment Systems and the Payment Equipment, and  any other products, services and solutions provided by or otherwise made available by CMT to or for Customer, Customer’s Affiliates or any Taxi pursuant to or in connection with the Agreement and “Solution” means any of them;

“Taxi(s)” has the meaning set forth in Section 2 below;

“Technology System” has the meaning set forth in Section 2 below;

“Term” shall mean five (5) years from the Effective Date;

“Terms and Conditions” or “Terms and Conditions (NYC)” refer to the present terms and conditions, as the same may be amended from time to time by CMT;

“Third Party Solution” has the meaning set forth in Section 5 below;

“TLC” refers to the New York City Taxi and Limousine Commission;

“TLC Rules” has the meaning set forth in Section 2 below.

“Transaction Fee”  means an In-Taxi Transaction Fee or a Platform Transaction Fee, as applicable.

“Transaction Proceeds” means, for each Payment, the amount of such Payment less any Transaction Fees or other amounts actually deducted by CMT pursuant to the Agreement or Applicable Law.

  1. EXCLUSIVITY.  

Throughout the Term, Customer hereby grants to CMT the exclusive right to: (a) provide, for any and all Taxis (as defined below), the taxi technology system comprised of payment and media services (“Technology System”) required by the TLC on this date pursuant to the rules and regulations it promulgates from time to time (“TLC Rules”), to be installed, maintained and utilized in and for any Taxicab (as defined in the TLC Rules), Street Hail Livery (as defined in the TLC Rules) or other New York City for-hire vehicle that is owned, managed and/or operated by or on behalf of Customer or any of its owners or Affiliatess (each such Taxicab, Street Hail Livery or other New York City for-hire vehicle, whether now or hereafter owned, managed and/or operated by or on behalf of Customer or any of its owners or Affiliatess, a “Taxi”, and all the them, the “Taxis”); (b) provide equipment, software, systems and methods for the making, accepting, and/or processing of Electronic Payments (“Payment Systems”) in and/or for any and all Taxis and/or any services provided in or by any such Taxi, which Payment Systems may be integrated with the Technology System; (c) use the interior space of any Taxi for the purpose of attaching Payment Equipment (including any wiring, brackets and peripherals relating to same); and (d) affix, broadcast, or display media, including advertising, and other paid content, in and/or on the interior of the Taxis (any such display of advertising “Interior Advertising”), which Interior Advertising may be in the form of digital video displays included in the Technology System. Customer covenants not to enter into any other agreement, either directly or indirectly (through an Affiliate, owner, or otherwise), that permits or authorizes any party (other than CMT) to, directly or indirectly, provide any Solutions in, for or with respect to any of the Taxis or any services provided therein or thereby.  

 

2.1 Interior Advertising. In exchange for the promises contained herein, Customer hereby appoints and designates CMT (or its agent) as the exclusive provider and reseller of interior advertising (including digital advertising), and all rights associated therewith, in all vehicles installed with the CMT Technology System throughout the Term.  

  1. MERCHANT OF RECORD.  

Customer hereby appoints CMT as its exclusive provider of all In-Taxi Payments.  Customer shall not permit any In-Taxi Payments to be routed through non-CMT Hardware. CMT will act as merchant of record with respect  to all Payments,  provided that, for the avoidance of doubt, CMT is only a provider of technology and services for the facilitation of Electronic Payments and not the actual merchant who is accepting payment for the transaction of business with consumers. As merchant of record, CMT will manage the process regarding disputed Payments, but Customer and the applicable driver of the relevant Taxi will be solely responsible for chargebacks and any related fees or charges unless such chargeback is solely a result of the failure of the Solutions. In the event that any Payment is reversed or charged back, CMT shall be entitled to reverse any Payment made to Customer or the applicable Taxi driver with respect to such Payment. CMT may provide, via any acquirer/processor which it approves at any time and from time to time (currently Bank of America Merchant Services), any one or more Services (including credit and debit card services) in accordance with this Agreement.  

  1. FEES.    

(a) Transaction Fee. For each In-Taxi Payment, Customer shall pay CMT the In-Taxi Transaction Fee.  For each Platform Payment, Customer shall pay CMT the Platform Transaction Fee.  

Customer acknowledges and agrees that CMT is entitled to deduct and collect the Transaction Fee and any other amounts payable under the Agreement, as well any amounts required to be deducted by Applicable Law, from each Payment, and retain such Transaction Fee or other amounts for CMT’s own account. 

If each of the forms required by CMT to enable electronic funds transfer are timely completed and delivered to CMT, then, for each Taxi fare actually collected by CMT, CMT will initiate a payment via electronic funds transfer to a U.S.-based bank account of Customer (or, if designated by Customer or required by applicable Law, the applicable Taxi driver) of the Transaction Proceeds no later than one business day following the date CMT receives Payment.

(b) Monthly Recurring Charges. For each Vehicle for each month of the Term, Customer shall pay CMT the Monthly Recurring Charges set forth in the Order Form.

(c)   Other Fees.  (i) ACH Fee of $0.25 for each payment of Electronic Payment proceeds to a driver via ACH transaction, (ii) Chargeback Inquiry Fee of $7.50 for each chargeback inquiry made with respect to an Electronic Payment, and (iii) Chargeback Fee: $10 for each Electronic Payment that is charged back or reversed (iv) if such equipment is covered by a CMT insurance policy which CMT is under no obligation to provide, an administrative fee of up to $350.000 may be charged to Customer or waived in CMT’s discretion  and if such equipment is not covered by CMT insurance, then the fees set forth in Section 7.3 hereunder, and (v) any applicable fees associated with Section 13 Termination, as applicable

(d) Billing and Payment.  Customer will pay CMT the amounts due hereunder as set forth in this Agreement, which amount Customer agrees may be deducted by CMT from Payments, and retained by CMT for its own account. The amounts payable by Customer to CMT hereunder do not include any excise, sales, use, value-added or other taxes, and are consequently subject to increase in the amount of any such taxes CMT may be required to collect or pay as a result thereof. Any amount which is not paid by Customer when due shall bear interest at the lower of: (i) a rate of 16% per annum or (ii) the maximum rate permitted by law.

Customer covenants and agrees that if Customer,, any of Customer"s  Affiliates, any Taxi driver, or any agent or designee or Customer or Customer"s  Affiliates receives an Overpayment, then Customer shall immediately notify CMT thereof and return the full amount of such Overpayment to CMT. If Customer fails to return the full amount of any Overpayment to CMT within five (5) business days of becoming aware thereof, then Customer will pay CMT interest on such Overpayment at the rate of 18% per annum or the maximum rate allowed by Applicable Law (whichever is less) from the date of such Overpayment until the date it is returned to CMT. Further, Customer shall indemnify and reimburse CMT for any Losses incurred by the CMT Group in connection with collection actions taken to recover any Overpayment.

 

(e)   Revenue.  Customer shall have no entitlement to any share of revenue received by CMT (as device support, hardware sponsorship or otherwise).  Unless agreed otherwise, CMT shall have no entitlement to any share of revenue received by Customer for exterior advertising (e.g., tops).

(f) Taxes.  Subject to applicable law and Section 5 hereof, at all times, Customer shall be responsible for all applicable taxes, duties and charges (“Taxes”) of any kind levied by a duly constituted taxing authority for all amounts related to transactions which may occur via the Services, including sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity on any amounts payable by Customer hereunder; provided, however, that in no event shall Customer pay or be responsible for any taxes imposed on CMT's income. To the extent any transaction occurring via the Solutions or Services is taxable (e.g., as income), Customer and Customer alone shall be solely responsible for all such taxes. Unless otherwise agreed in writing between the Parties or specifically set forth in Section 5 herein, CMT shall be under no obligation to and shall not withhold any amount related to Taxes from amounts due Customer.

In accordance with all applicable laws relating to Taxes, CMT may be required and, where required, shall file all appropriate disclosures with the applicable taxing authorities with regard to the Services provided hereunder, including IRS 1099-K and state and local equivalents (if applicable to the Services). Customer hereby indemnifies and holds CMT harmless from any and all filings made to governmental taxing authorities regarding the Services provided hereunder or the consequences associated with any such filing.

(h) Customer hereby authorizes CMT to withhold and deduct from any amounts due Customer any Fees which are due and payable to CMT. In the event of non-payment by Customer, Customer authorizes CMT to withhold the provision of any and all Services and to deny Customer and the Customer Representatives and Users access to the Services.  CMT Group shall not be responsible for any Losses, including for any lost shift time or regulatory fine, assessment, or similar penalty, associated with or arising from such consequences for non-payment. In the event Customer has defaulted in its payment obligations for more than thirty (30) days, such extended non-payment shall be deemed to constitute a material default, which default shall eliminate the necessity of any notice on the part of CMT which might otherwise be required, entitling CMT to immediately pursue any and all remedies available, whether pursuant to this Agreement, at law, or in equity.  

In the event any sums owing to CMT under the Agreement are not paid when due and payable (or, where no delay for such payment is expressly provided in this Agreement, within ten (10) days of such sums being requested by CMT), interest shall accrue on such sums at the rate of one and one-half percent (1.5%) per month, or other such lower rate as CMT, in its discretion, determines.

In addition to all other remedies available under this Agreement or at law (which CMT does not waive by the exercise of any rights hereunder), if the Customer fails to pay any Fees when due hereunder, Customer irrevocably authorizes CMT to withhold the provision of any and all Services and to deny Customer, Customer Representatives and Users access to the CMT Technology System. CMT shall not be responsible for or indemnify Customer for any and all Losses related to or arising at any time in relation to or as a result of same, including without limitation any lost shift time or regulatory fine, assessment, or penalty associated with such consequences for non-payment.

  1. REGULATORY COMPLIANCE.

(a)  Regulatory Requirements.  Customer and CMT shall be at all times responsible for compliance with applicable regulatory requirements governing Taxi operations.  Additionally, Customer represents and warrants that Customer  is not listed on any U.S. Government list of prohibited or restricted parties and Customer will not export or re-export the Services directly or indirectly except as authorized by U.S. law or any other Applicable Laws.

(b)  Surcharges.  In the event any regulatory authority (ies), including, but not limited to, TLC, State of New York, City of New York and Port Authority of New York New Jersey, impose any fees, taxes, surcharges or other amounts which are to be collected from passengers as part of the trip fare (collectively, “Surcharge”) which Surcharge CMT is legally obligated to remit to such regulatory authority(ies), Customer hereby authorizes CMT to first deduct any fees to which CMT is entitled under this Agreement (including any CMT fees associated with the collection and remittance of such Surcharge), and then withhold such amounts which are required to be remitted on all trips recorded by CMT from the Customer for such day (“Surcharge Liability”), including trips for which the fare was paid in cash, from the credit card receipts processed by CMT as the merchant of record, prior to distributing the daily credit card receipts to Customer.  In the event the daily credit card receipts are insufficient to pay the Surcharge Liability for such day (“Deficiency”), Customer authorizes CMT to withhold such Deficiency from future amounts due Customer from credit card receipts until CMT has collected from Customer the entire Deficiency.  CMT also reserves the right to invoice Customer for such Deficiency.  The Parties agree that notwithstanding anything to the contrary in these Terms and Conditions, while CMT may be required to remit the Surcharge Liability to the regulatory authority(ies), CMT is not liable to collect the Surcharge Liability or any Deficiency.  Rather, Customer is liable for the entire Surcharge Liability, including any Deficiency and hereby indemnifies CMT and its Affiliates, directors, officers, employees and representatives with respect to any Claims or Losses related to the remittance of any Surcharge by CMT.

Customer agrees to pay CMT for all costs incurred in the Surcharge Liability remittance (including any costs incurred with the submission of any required reports or returns) and any fees that may be imposed by CMT to facilitate such remittance.  Such fees shall not exceed $0.10 for each recorded trip.

(c) Payment Card Industry Compliance, In addition to any other responsibilities set forth in these Terms and Conditions, Customer agrees that, at all times throughout the Term, Customer will comply with the PCI Standards in using and maintaining the Payment Systems.

Under these standards, certain activity may subject the Customer to disputes, fees, fines, settlement delays, withholdings, audits of Customer’s processing activity, or termination of the Payment Systems and/or the Agreement. Without limiting the foregoing, Customer specifically agrees to:

i. Only submit transactions authorized by the cardholder,

ii. Only accept payment for the sale of services,

iii. Only submit a transaction for the full amount owed by the payment card holder for the transaction,

iv. Not discourage the use of the secure payment device for cash, and

v. Prohibit use of payment cards for disbursement of cash.

(d) Customer agrees to comply with the security obligations identified in the Agreement, including compliance with the PCI Standards which include, but are not limited to:

i. Only using cardholder data as permitted, and certifying such compliance upon request,

ii. Not permitting or promoting fraudulent use of the payment device or cardholder data,

iii. Using all reasonable methods to resolve disputes with the payment card holder, and

vi. Not attempting to recharge a payment card holder for a transaction that was previously charged back unless the recharge is expressly authorized by the payment card holder.

(e) Customer’s payment system is considered a ‘Marketplace’ under the Network Rules specified by Visa (“Visa Rules”) and Customer uses  the Payment Processing Services to accept charges from Visa-branded payment cards, therefore, Customer specifically agrees:

i. That it will not ask or require the payment card holder to waive their dispute rights, and

ii. That Customer is liable for all acts, omissions, Visa cardholder disputes, and other Visa cardholder customer service related issues caused by the use of the payment device, and responsible and financially liable for each transaction submitted.

(f) Customer agrees to make the Payment Equipment available to CMT for inspection at least annually.

  1. SERVICES.  

(a) General Requirements. CMT shall comply with all applicable Technology System requirements and service levels set forth in the TLC Rules. Customer shall immediately notify CMT of any Technology System that it becomes aware is not functioning in accordance with applicable service levels required under TLC Rules, and in all cases make the affected Taxi and Technology System available to CMT for maintenance repair in a timely manner.  CMT shall cooperate in good faith to discover the cause of such malfunction and, where it discovers that the cause for the malfunctioning CMT Payment system is a manufacturing defect, such malfunctioning component shall be replaced or remedied at CMT’s sole cost. CMT shall provide maintenance services in accordance with TLC Rules.  CMT shall use commercially reasonable efforts to provide Customer with a CMT Technology System for each Taxi.  Customer, promptly upon receiving notice that a CMT Technology System is available for installation in any Taxi, shall cause such CMT Technology System to be installed in each relevant Taxi by CMT or a CMT Authorized Service Center. To the extent any other technology solutions similar, in whole or in part, to the CMT Technology System or any part thereof, are installed in any Taxi (“Third Party Solution”), these shall be removed by Customer. Customer shall be solely responsible for the Third Party Solution (including, without limitation, any handling, removal, warehousing, return, or other).  Customer agrees to indemnify and hold harmless CMT and its Affiliates, directors, officers, employees and representatives with respect to any Claims or Losses related to any Third Party Solution. TO BE CLEAR AND NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY, UNLESS  A DIGITAL METER HAS BEEN INSTALLED BY CMT, THE CMT TECHNOLOGY SYSTEM AND SERVICES DO NOT INCLUDE A TAXIMETER.

(b) Access to Vehicles. Customer will provide CMT with complete and accurate descriptions, information, and data required in Schedules to this Agreement, of such other information as CMT may, in its reasonable discretion, require of Customer from time to time.   Customer shall ensure the Schedules and all such descriptions, information, and data are at all times accurate throughout the Term (as defined in the Order Form). Customer will provide to CMT timely access to the Taxis to enable efficient installation, maintenance, repair, or removal, as the case may be, of the Solutions, at the request of CMT, and will produce and make available Taxis promptly upon request by CMT for any such purpose (and in all cases, no later than two (2) business days following such request).

(c) Sale, Transfer, or Conveyance. If Customer wishes to transfer or convey ownership or control of a Taxi, the Customer shall be required to promptly notify CMT in writing prior to completing any such sale, transfer or conveyance so that CMT may remove all CMT Technology from such Taxi. If Customer fails to notify CMT as required by the previous sentence, and CMT is unable to recover the CMT Technology contained in such Taxi, or such CMT Technology is damaged when CMT does recover such CMT Technology, then Customer shall pay CMT, upon demand, CMT’s then-current replacement cost for such CMT Technology.  

(e) E-hail Platform. Customer consents and agrees to the Taxi(s) being included in, and being made available for hiring by the users of, the E-hail Platform.  For each trip booked or arranged via the Ehail Platform that is accepted and/or performed by a Taxi, CMT may charge Customer and Customer agrees to pay CMT (and that CMT may collect and retain from Transaction Proceeds), a referral fee; provided that CMT will notify Customer of the amount and the effective date of any such referral fee at least ten (10) business days prior to such referral fee going into effect.

 

  1. WARRANTY & RISK OF LOSS.

7.1  CMT warrants the CMT Technology System against defects in material and workmanship under normal use and service for the Term of this Agreement following installation in a Taxi of such CMT Technology System, subject to ordinary wear and tear (“Limited Warranty”).  At its option, CMT will replace the equipment during the Term at no charge where such dysfunction is the result of a manufacturing defect. This Limited Warranty does NOT cover:

(a) Defects or damage resulting from use of any part of the CMT Technology System (“System Components”) in other than its normal and customary manner and in accordance with this Agreement and any instructions or guidelines related to same;

(b) Defects or damage from misuse, accident, or neglect;

(c) Defects or damage from improper testing, operation, maintenance, installation, adjustment, or any alteration or modification of any kind;

(d) Equipment disassembled or repaired in a manner which adversely affects performance or prevents adequate inspection and testing to verify any warranty claim;

(e) Equipment with labels removed or illegible serial numbers;

(f) Defects or damage due to spills of or immersion in food or liquid; and/or

(g) Scratches on plastic surfaces, screens, or externally exposed parts, provided the unit is functional and its operation is not, in the reasonable evaluation of CMT, materially impaired by same.

The Customer (a) acknowledges that, from time to time, the CMT Technology System may experience downtime or may be unable to process Electronic Payments, and (b) agrees that CMT shall not be liable to Customer for any losses or damages resulting from such down time or inability to process Electronic Payments. THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED (INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE), AND ALL SUCH OTHER WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED BY CMT AND CUSTOMER.  

7.2 EXCEPT AS EXPRESSLY SET FORTH HEREINABOVE IN THIS SECTION 7 OR OTHERWISE REQUIRED BY TLC RULES, THE CMT TECHNOLOGY SYSTEM, SERVICES, SOLUTIONS AND CMT TECHNOLOGY ARE PROVIDED TO CUSTOMER ON AN AS-IS BASIS WITHOUT ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. IN NO EVENT SHALL CMT GROUP BE LIABLE TO CUSTOMER, TO CUSTOMER REPRESENTATIVES AND USERS, OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT CMT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. CMT MAKES NO WARRANTIES EXCEPT FOR AS PROVIDED IN SECTION 7.1 ABOVE. ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, ARE EXPRESSLY DISCLAIMED.

  1. In the event of loss or damage to the CMT System, or any component parts thereof,, Customer will be responsible for up to the Full Replacement Cost.  CMT and its Affiliates are not required to provide Customer with any insurance coverage for any loss to Customer or Customer’s Taxi.  

7.4 Customer hereby acknowledges and hereby waives its rights to any claim for lost shift time due to maintenance or downtime of the CMT Technology System.

  1. OWNERSHIP OF EQUIPMENT AND TECHNOLOGY 

(a) At all times, the CMT Technology System shall remain the property of CMT, and Customer shall be responsible for the loss, theft, or damage to same or any part thereof. Customer expressly acknowledges and agrees that any hardware, software or other equipment included in any of the Solutions or otherwise comprising or used to provide Customer and/or its drivers and/or Taxis with access and/or use of any of the Solutions (collectively, “CMT Technology”)  contain proprietary information and materials owned by CMT and its licensor(s), and that ownership of all Intellectual Proprietary Rights relating to, embodied by, or residing in the CMT Technology and the Proprietary Materials shall remain with and belong exclusively to CMT. Customer shall not decompile, disassemble, copy, modify, reverse engineer, tamper with, or otherwise change or interfere with any CMT Technology, in whole or in part (or allow any third party to perform any of such actions), without the prior express written consent of CMT.  Customer shall notify CMT in writing if it becomes aware of any actual or threatened misappropriation or infringement of CMT’s proprietary rights that Customer becomes aware of.   Customer shall not remove, alter, or conceal from the Solutions (or any materials related thereto) any of CMT’s or CMT’s Affiliates’ or licensors’ trademarks, trade names, logos, intellectual property notices, or other notices or markings, without the express prior written consent of CMT.  Customer further acknowledges that as between Customer and CMT, CMT owns all rights (including all Intellectual Property Rights”) in any and all software, source code, and/or object code embedded, included or otherwise provided in or for the Solutions and any other software provided by CMT at any time, as well as in any and all materials, documents, and instructions related thereto. Any agreement to “sell”, “purchase” or “license” any software of CMT, shall mean the express grant by CMT to Customer of a non-exclusive, non-transferable, non-sublicensable, revocable, limited license to use such software  (i) in object code form only, and (ii) in the United States of America only, in each case during the Term of this Agreement. All products or services of CMT (including software) shall be used for the sole purpose of enabling Customer to utilize the Solutions as expressly contemplated hereby, and for no other purpose.  Customer’s use of the Intellectual Property Rights of CMT (including the trademark or trade name of CMT or any of CMT’s Affiliates) shall accrue solely to the benefit of CMT.

  1. LIMITATION OF LIABILITY.  

NOTWITHSTANDING ANYTHING ELSE SET FORTH IN THIS AGREEMENT: (A) IN NO EVENT SHALL CMT GROUP’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE SERVICES, THE SOLUTIONS, OR ANY CMT TECHNOLOGY, REGARDLESS OF THE FORM OF ACTION GIVING RISE TO SUCH LIABILITY (CONTRACT, TORT, OR OTHERWISE), EXCEED THE AMOUNTS ACTUALLY PAID BY CUSTOMER TO CMT PURSUANT TO THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE FIRST OCCURRENCE OF THE INCIDENT UNDERLYING CMT’S LIABILITY, AND (B) CMT SHALL NOT BE LIABLE FOR ANY EXEMPLARY, SPECIAL, INDIRECT, CONSEQUENTIAL, PUNITIVE OR INCIDENTAL DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, REPUTATIONAL DAMAGE, OR LOSS OF INFORMATION), EVEN IF CMT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS SECTION 9 STATES THE ENTIRE LIABILITY OF CMT WITH RESPECT TO THIS AGREEMENT, THE CMT TECHNOLOGY SYSTEM, THE SERVICES, THE SOLUTIONS, OR ANY OTHER CMT TECHNOLOGY. THIS SECTION 9 IS A FUNDAMENTAL PART OF THE BASIS OF CMT’S DECISION TO ENTER INTO THIS AGREEMENT, WITHOUT WHICH IT WOULD NOT HAVE ENTERED INTO THIS AGREEMENT, OR WOULD HAVE ENTERED INTO SAME ON DIFFERENT TERMS.  

  1. INDEMNIFICATION 

Customer shall be liable for, and shall indemnify, defend and hold harmless CMT Group (collectively, the “CMT Indemnitees”) from and against, any Claims and Losses (including any direct or third party Claims) that may arise or be asserted in connection with or as a result of (i) any accident or incident involving any of the Taxis, regardless of fault (except solely as a result of defective CMT Technology where the defect is covered by the Limited Warranty), (ii) any Claim against CMT by a lender or creditor of Customer, (iii) any Claim by any Taxi driver or other third party involving Customer’s actual or alleged failure to pay any amounts (including any portion of any Taxi fare) to a third party,  (iv) any workers’ compensation or other Claim arising from or in connection with the operation of any Taxi, or (v) any breach of Customer’s representations, warranties, or obligations under the Agreement or any  inaccurate representation or warranty of Customer under  to the terms of this Agreement.

Any Party seeking indemnification pursuant to this Agreement (“Indemnified Person”) shall provide prompt written notice of a claim or action subject to the other Party’s obligations (“Indemnifying Party”), copies of all papers served on the Indemnified Person relating to the claim or action, and reasonable assistance to the Indemnifying Party, at the Indemnifying Party’s expense, in the defense or settlement of the claim or action. An Indemnifying Party shall not be relieved of its obligations to indemnify pursuant to this Agreement where the Indemnified Person fails to comply with the notice provisions in this Section except to the extent that the indemnifying Party’s ability to defend or settle a claim or action is materially prejudiced. The Indemnifying Party shall have the sole right to conduct the defense of any claim or action for which it promptly assumes its defense obligations and all negotiations for its settlement or compromise; provided, however, that the Indemnifying Party shall not, without the prior written consent of an Indemnified Person, effect any settlement of any pending or threatened indemnified claims in respect of which indemnity or contribution has been sought hereunder by such Indemnified Person unless (i) such settlement includes an unconditional release of such Indemnified Person in form and substance satisfactory to such Indemnified Person from all liability on the claims that are the subject matter of such Indemnified Claims, and (ii) such settlement does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any Indemnified Person. If the indemnifying Party does not assume its defense or settlement negotiation obligations within fifteen (15) business days of being informed of a claim or action in accordance with this Section (or, if action is required pursuant to a third party claim prior to such delay, within such required delay), the indemnified Party may take such actions as it deems appropriate to defend or settle the claim or action, and the indemnifying Party will indemnify the indemnified Party for any costs associated with such defense or settlement, as well as the amount of any judgment asserted against the indemnified Party or settlement amount paid by the indemnified Party.

  1. REPRESENTATIONS, WARRANTIES AND OBLIGATIONS.

 Without limiting any obligations of Customer elsewhere provided, Customer represents, warrants, and covenants to CMT that:

(a) Customer has full authority, without breaching or infringing the rights of any third party, to enter into the Agreement, which shall be binding upon and in full force and effect with respect to the Customer throughout the Term; and that neither the execution nor the performance of this Agreement shall constitute a default or breach of any contract or commitment to which it is a party or by which it is bound;

(b) Customer will cooperate with, and cause all its agents and representatives to cooperate with, the installation of the CMT Technology System;

(c) Customer shall at all times during the Term (i) maintain valid insurance coverage with respect to its Taxis, (e.g., each Taxi will be, at all times during the Term, covered by and subject to a duly issued and effective liability insurance policy that provides protection against bodily injury and property damage to third parties at levels of coverage that satisfy the minimum requirements to operate a Taxi within the territory where the services are provided (“Territory”)), which coverage must also include any no-fault coverage required by law or regulation in the Territory that may not be waived by an insured,(ii) be responsible for ensuring the Taxis comply with applicable Laws and safety standards, (iii) maintain all licenses, approvals and authority required for Customer to carry on its business, and (iv) comply with all applicable Laws.  Where the applicable commercial auto liability policy includes a blanket additional insured endorsement, Customer agrees that Customer's consent and agreement to this Agreement satisfies the endorsement’s requirements.

;

(d) Customer shall reasonably cooperate and assist CMT in support of CMT’s performance of its obligations under this Agreement; such reasonable cooperation and assistance shall include arranging for the applicable taxicab to be made available to CMT or a CMT Authorized Service Center on the installation date scheduled by CMT.  Customer shall be responsible for the proper operation and use of each CMT Technology System (including any and all software, hardware, and networks made available by CMT) as contemplated by this Agreement. Customer shall pay such fees as may be determined and charged by CMT from time to time in connection with installation services provided by CMT in connection with this Agreement, provided such fees shall not exceed the rates then on file with the TLC;

(e) Customer shall cause the Customer Representatives to: (i) comply with the terms of this Agreement throughout the Term, and (ii) not perform any action or permit any omission which would cause Customer to be in breach of its obligations under this Agreement.

(f)  CMT and Customer hereby agree that only mobile applications (“Apps”) approved by CMT may be used in Customer vehicle(s).  Customer hereby irrevocably (i) grants to CMT the exclusive right to make decisions on behalf of Customer, at any time and from time to time, in connection with the Apps, and (ii) agrees that such decisions of CMT shall be binding upon Customer and Customer vehicle(s) throughout the Term.  Customer agrees to do, and to cause the Customer Representatives to do, all things necessary or useful to give effect to any decision of CMT regarding an App where such collaboration is requested or otherwise necessary to give effect to a decision of CMT in connection with such matter. CMT shall not be responsible for, and shall be under no obligation to provide any integration or support to, Apps which it has not approved in accordance with this Agreement, unless specifically required to do so by the TLC (provided. In the latter case, such requirement is not the object of a bona fide appeal or contestation by CMT).

  1. CONFIDENTIALITY.

During the Term, and for a period of three (3) years following the expiration or termination of the Term, Customer agrees to keep (a) the terms of this Agreement, (b) records regarding the operation or performance of, and data collected in connection with, the CMT Technology, and (c) the Business Information (as defined below), (collectively, and whether or not marked confidential, restricted, proprietary, or with a similar designation at the time of disclosure, the “Confidential Information”) strictly confidential and not to disclose or make available such information to any person or entity without the prior express written consent of CMT, which CMT may withhold in its sole and absolute discretion; provided, however, that disclosure by Customer of Confidential Information to attorneys or accountants who represent Customer (“Representatives”) and are bound to keep such information confidential shall not constitute a breach of this Agreement, provided such persons (a) have a need to know, and (b) are bound by written or legal obligations no less protective of the Confidential Information than the terms hereof throughout the term during which duties of confidentiality pursuant to this Agreement survive. Customer shall be responsible for any unauthorized disclosure by a Representative or other violation of the terms hereof. When used in this Agreement, "Business Information" means all information regarding the information of or related to CMT or any of its Affiliates which is not generally known and which would tend to confer to a competitor a competitive advantage.  Customer shall in no way use the Confidential Information for any purpose other than solely for the purpose of carrying out its obligations pursuant to this Agreement.

  1. TERMINATION.

(a) If either Party fails to perform any of its material obligations hereunder (excluding payment obligations described in Section 13(b) below) and such failure is not remedied within fifteen (15) days of the defaulting Party having received notice of such default from the non-defaulting Party, the non-defaulting Party shall have the right to terminate this Agreement immediately by delivering written notice of termination to the other Party.  

(b) Notwithstanding Section 13(a) above, CMT may immediately terminate this Agreement where Customer fails to pay any Fee(s) when due.

(c) Customer reserves the right to terminate this Agreement for convenience in accordance with, and to the extent that, such right is set forth in the TLC Rules

(d) Customer shall be entitled to terminate this Agreement by providing written notice of termination if there is a change in the status of the CMT TSP License in accordance with and to the extent that such right is set forth in the TLC Rules.  

(e) Either Party may terminate the agreement upon ten (10) days written notice to the other party (i) if such other Party ceases to do business, or (ii) in the case of insolvency of, or commencement of any proceeding by or against, the other Party, either voluntary or involuntary under Title 11 of the United States Code, as amended from time to time (the "Bankruptcy Code"),, or relating to the insolvency, receivership, liquidation or composition of the other Party for the benefit of creditors (each, a Special Default Event”),  CMT may immediately terminate this Agreement.

(f) Customer agrees that, in the event Customer (i) removes or disables the CMT System or any System Component, (ii) terminates this Agreement other than for cause (i.e., terminates for convenience) in accordance with Section 13(c) hereof (iii) fails to remedy a default within the fifteen (15) day remedy period, or (iv) there occurs any Special Default Event  (each, a “Customer Termination Event”), Customer shall pay an Early Termination Fee (as defined below), in addition to any other Fees articulated herein or amounts due hereunder.   equal to the maximum permitted recoverable amount pursuant to the TLC Rules (or, if none is provided at any time following the Effective Date, CMT shall be entitled to recover any and all losses resulting from such early termination, including the Monthly Recurring Fees for the then-remaining months) “Early Termination Fee” shall be an amount equal to (a) twenty-five percent (25%) of the Monthly Recurring Charges multiplied by the number of months remaining on the contract, not to exceed twelve (12) months, if the CMT System is returned in good working order or (b) if such amount is greater than (a), the maximum termination charge permitted by the TLC Rules, If the CMT System is not returned, is damaged beyond repair, or is removed by someone other than an CMT Authorized Service Center or as permitted by TLC Rules, the Early Termination Fee shall also include the Full Replacement Cost of the CMT System.

(g)  De-Installation Fee.  Customer agrees that, in the event a Customer Termination Event occurs, Customer shall pay a De-Installation Fee (as defined below) when the Technology system is removed by CMT, in addition to any other Fees articulated herein or amounts due hereunder.  “De-Installation Fee” shall be an amount equal to the maximum amount permissible by the TLC Rules (currently, one hundred twenty-five dollars ($125.00)).  If Customer has equipment uninstalled by any Person other than CMT, CMT Authorized Service Center or in accordance with TLC Rules, Customer shall be responsible for an amount equal to two hundred fifty dollars ($250.00) to have CMT personnel inspect and verify the operational capability of the improperly de-installed equipment (“Equipment Re-Inspection Fee”), in addition to any other Fees articulated herein or amounts due hereunder.

(h)  Upon termination, Customer shall return all System Components to CMT within forty-five (45) days of the termination date specified in the Termination Notice or of the termination by CMT following a Special Default Event.  In the event Customer fails to return all System Components within such forty-five (45) days, Customer shall be deemed to have purchased the unreturned System Components at a price equal to Full Replacement Cost and shall be liable to CMT for the payment in full of such amount (the “Purchase Price”) within ten (10) days following the expiration of such forty-five (45) day period.  Further, upon termination for cause by CMT, all remaining payments due by Customer under this Agreement shall become immediately due and payable.

  1.   DATA PRIVACY

(a)  Disclosure of Customer  Information. Subject to applicable Law, CMT  and its Affiliates may, but shall not be required to, provide to Customer, an actual or prospective Taxi passenger, an insurance company, and relevant authorities or regulatory agencies, any information (including personal information about Customer, any Taxi driver or any Taxi trip) if: (i) there is an accident or incident involving a Taxi; (ii) there is a complaint, dispute or conflict between or among Customer, a Taxi driver, and an actual or prospective Taxi passenger; (iii) it is necessary to enforce the terms of the Agreement; (iv) it is required, in CMT’s  sole discretion, by applicable Law (e.g., CMT or its Affiliates receive a subpoena, warrant, or other legal process for information); or (v) it is necessary in CMT’s or any CMT Affiliate’s sole discretion.

(b)  Location-based Services.  Customer expressly consents to CMT’s  and its Affiliates’ use of location-based services, and Customer expressly waives and releases CMT and its Affiliates from any and all liability, claims, causes of action, or damages arising from Customer's  or Customer's  Affiliates’ or Taxi drivers’ use of the Solutions, or in any way relating to the use of the geolocation and other location-based services.

(c)  Collection of Personal Data. CMT and its Affiliates may collect personal data of Customer, and Customer's  Taxi drivers during the course of Customer's  application for, and/or use of, the Solutions, which information may be stored, processed, and accessed by CMT and its Affiliates for business purposes, including for marketing, lead generation, service development and improvement, analytics, industry and market research, and such other purposes consistent with CMT’s and its Affiliates’ legitimate business needs. Customer expressly consent to such use of personal data.

  1. MISCELLANEOUS PROVISIONS.

(a)  Assignment.  Customer shall not assign the Agreement, or any of its rights and obligations hereunder, by operation of law or otherwise, without the prior written consent of CMT, and any such attempted assignment effected otherwise than in accordance with the preceding terms shall be void. CMT may assign the Agreement, along with any or all of its rights and/or obligations hereunder, to (i) any present or future Affiliate of CMT, or (ii) any acquirer or licensor of all or substantially all the assets of CMT, or (iii) any entity merging or amalgamating with CMT (collectively, "CMT Assignments"), in each case without the Customer’s prior consent.  Any assignment permitted hereunder (other than CMT Assignments) will not relieve the assigning Party of any of its obligations under this Agreement.  Furthermore, the Agreement shall be binding on the Parties and their respective legal successors and permitted assigns.

(b)  Notices.  Any notice from CMT to Customer under the Agreement will be delivered by email or posting on any portal available to Customer as part of the All notices, requests, claims, demands, and other communications regarding this Agreement shall be in writing and shall be given or made (and shall be deemed to have been duly given or made upon receipt) by delivery in person, by overnight courier service (with signature required), by facsimile, or by registered or certified mail (postage prepaid, return receipt requested) to the respective Parties. 

(c) Subcontracting.  CMT may subcontract the performance of any of its obligations under this Agreement, including any Service, or portion thereof, without notice to or the consent of Customer.  CMT shall remain fully responsible for any such obligations which it subcontracts as permitted hereunder, and CMT shall be solely responsible for payments due such sub-contractors.  

(d) Advertising or Publicity.  Neither Party shall use the name of the other in publicity releases, advertisements or other public statements issued by any Party relating to this Agreement or the transaction contemplated hereunder without securing the prior written approval of the other.

(e) Governing Law.  The Laws of the State of New York shall govern the validity of this Agreement, the construction and enforcement of its terms, and the interpretation of the rights and duties of the Parties hereunder.

(f)  No Prejudice for Prior Non-Enforcement.  A failure or delay of a Party to enforce at any time any provision of the Agreement, or to exercise any option under the Agreement, or to require at any time performance of any provision of the Agreement, shall in no way be construed to be a waiver of such provision.

(g) Entirety of Agreement.  The Agreement constitutes the entire agreement between the Parties and supersedes all previous agreements, promises, representations, understandings, and negotiations, whether written or oral, between the Parties with respect to the subject matter hereof.  

(h) Severability.  In the event any one or more of the provisions of the Agreement shall for any reason be held to be invalid, illegal, or unenforceable, the remaining provisions of this Agreement shall be unimpaired, and the invalid, illegal, or unenforceable provision(s) shall be replaced by a mutually acceptable provision(s) negotiated by the Parties that, being valid, legal, and enforceable, comes closest to the Parties’ intentions related to the underlying invalid, illegal, or unenforceable provision(s).

(i) Headings.  The headings in the Agreement are for reference only and shall not in any way limit or otherwise affect the meaning or interpretation of any of the terms hereof.

(j)  Independent Contractor.  The Parties intend to create an independent contractor relationship and nothing contained in this Agreement shall be construed to make either Customer or CMT partners, joint venturers, principals, agents, or employees of the other. No officer, director, employee, agent, Affiliate, or contractor retained by CMT to perform work on Customer’s behalf under this Agreement shall be deemed to be an employee, agent, or contractor of Customer. No employment relationship is created between CMT and Customer and/or Customer’s drivers. CMT shall not be considered to be directing, in any manner, the work of any driver.  

(k)  Counterparts.  This Agreement may be executed in several counterparts, all of which taken together shall constitute one single agreement between the Parties.

(l) Third Party Beneficiary.  This Agreement benefits solely the Parties to this Agreement and their respective permitted successors and assigns, and nothing in this Agreement, express or implied, confers on any other Person (including, without limitation, any Customer Representatives and Users) any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

(m) Survival of Provisions.  The provisions of Sections 7.2, 8, 9, 10, 11, 12, 13, 14, 15 and 16 and such other provisions that by their nature or effect survive the expiration or termination of the Agreement, shall survive without limit in time, regardless of whether the Agreement was terminated (with or without cause) or expired.

(n)  Interpretation.  Reference to any paragraph or other section shall be a reference to such article, paragraph or other section as it appears in the Agreement. When used in this Agreement, the term “including” or similar shall be deemed to be followed by “without limitation”.

(o) Modifications.  These Terms and Conditions may, from time to time be modified or amended, effective upon publishing such modified or amended Terms and Conditions to its website https://www.cmtgroup.com/ or Fleetnet or providing Customer with written notice of such modified or amended Terms and Conditions   Customer hereby acknowledges and agrees that by using the Solutions or any software included in the Solutions, Customer is bound by the then-current version of these Terms and Conditions.  Continued use of the Solutions after such modifications or amendments shall constitute Customer’s consent to and acceptance of such amendments or modifications.

16.  GOVERNING LAW, ARBITRATION OF DISPUTES

(a) Governing Law.  The Laws of the State of New York shall govern the validity of this Agreement, the construction and enforcement of its terms, and the interpretation of the rights and duties of the Parties hereunder.  Subject to Section 16(b)  below, any Disputes shall be subject to the exclusive jurisdiction of the U.S. federal courts located in the Southern District of New York, or, if any such court determines that it does not have subject matter with respect to any Dispute, then exclusive jurisdiction shall lay with the New York state courts located in the City and County of New York, New York.

(b) Disputes Subject to Arbitration. Other than Disputes regarding the intellectual property rights of the parties or enforcing claims for injunctive or equitable relief, to the extent permissible by applicable law, rules or regulations, any other Dispute shall be resolved by binding arbitration before one (1) arbitrator. CUSTOMER COVENANTS AND AGREES NOT TO PURSUE ANY CLAIM AGAINST CMT AS A CLASS ACTION, CLASS ARBITRATION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE ACTION. CLAIMS REGARDING ANY DISPUTE AND REMEDIES SOUGHT AS PART OF A CLASS ACTION, CLASS ARBITRATION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE ACTION MUST BE BROUGHT ON AN INDIVIDUAL (NON-CLASS, NON-REPRESENTATIVE) BASIS. The arbitration shall be administered by JAMS (Judicial Arbitration & Mediation Services) and conducted in accordance with the expedited procedures set forth in the JAMS Streamlined Arbitration Rules & Procedures rules. Those rules are available here: http://www.jamsadr.com/rules-streamlined-arbitration/. The arbitration shall be held in New York  and conducted in the English language. The parties shall maintain the confidential nature of the arbitration proceeding and any award, including the hearing, except as may be necessary to prepare for or conduct the arbitration hearing on the merits, or except as may be necessary in connection with a court application for a preliminary remedy, a judicial challenge to an award or its enforcement, or unless otherwise required by applicable law or the order of a court of competent jurisdiction. If CMT is not the prevailing party on any claim in arbitration, the arbitrator shall have authority to award Customer with compensatory damages only and is not empowered or permitted to award  Customer  any consequential, punitive, exemplary, or multiple damages, and Customer expressly waives any right to recover any such damages. Notwithstanding any provision of the Agreement to the contrary, any arbitration conducted pursuant to the terms of this paragraph shall be governed by the Federal Arbitration Act (9 U.S.C., Secs. 1-16). In any arbitration arising out of or related to the Agreement, the arbitration costs and fees (including the fee for the arbitrator) shall be shared equally by the parties and each party shall be solely responsible for its other respective costs and attorneys’ and experts’ fees incurred in connection with the arbitration. The prevailing party in any arbitration arising out of or related to the Agreement shall be entitled to recoup, and the arbitrator shall award to the prevailing party, its reasonable costs and attorneys’ and experts’ fees incurred in connection with the arbitration. Judgment on any award in arbitration may be entered in any court having jurisdiction. Notwithstanding the foregoing, each party shall have recourse to any court of competent jurisdiction to enforce claims for injunctive and other equitable relief. Nothing herein shall be taken or construed as precluding either party from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.

[End of CMT Terms & Conditions]

Creative Mobile Technologies, LLC │ 42-32 21St Street, Long Island City, NY 11101 │ www.cmtgroup.com