OPTIBUS DRIVER APP TERMS OF USE
Last Updated: 15 December 2022
These Optibus Driver App Terms of Use, together with any other agreements or terms incorporated by reference, including the Driver App Privacy Policy (available at https://legal.driver.optibus.co/en/privacy.html) (these “Terms”) are a binding and enforceable legal contract between the user using the Services (“Driver,” “you,” or “your”) and Optibus Ltd., d/b/a Optibus (“Optibus,” “we,” “us” or “our”). Driver and Optibus are each a “Party” and together the “Parties.”
You are accessing and using the Services (as defined below) in connection with your position as a driver of a vehicle in a fleet of vehicles (“Fleet”) managed using Optibus’ proprietary software platform designed to analyze and generate optimized arrangements for vehicles and drivers of transportation agencies and other organizations that operate fixed-route transportation services (the “Platform”). The Platform allows the owner or operator of the Fleet (“Fleet Owner”) to manage, operate, control, optimize, and administer its Fleet and to communicate with you via the Services.
Please read these Terms carefully before downloading, installing, registering for, or using the Services. Your decision to use or not to use the Services and/or to suspend or cease such use of the Services is likely to be impacted by the policies of your Fleet Owner and/or your contractual agreements with them, all of which are not determined nor controlled by Optibus in any way. For any questions relating to such policies, rules, and contractual obligations please contact your Fleet Owner directly.
If you are entering into these Terms on behalf of a company or another legal entity, you represent that you have the authority to bind such entity and its affiliates to these Terms, in which case the term “you” will refer to such entity and its affiliates. If the legal entity that you represent does not agree with these Terms, you must not accept these Terms or use the Services.
By clicking on the “I agree” (or similar button or checkbox) that is presented to you at the time of your registration, or by using or accessing the Services in any wat, you indicate your assent to be bound by these Terms.
- DEFINITIONS.
- "Account" means an account registered by you in the Driver App for the purpose of using the Services.
- "Content" means any content or materials displayed or performed or available on or through the Services, including, but not limited to, reports, schedules, text, charts, graphics, data, and images.
- "Driver App" means Optibus’ proprietary web or mobile application that interfaces with the Platform to allow you to organize and manage your work schedule and duties.
- "Services" means the Driver App and its associated services, schedules, documentation, data, Content, and information made available through the Driver App’s interface with the Platform.
- THE SERVICES
- Services. The Services are provided to you by Optibus in connection with your engagement with your Fleet Owner as a driver of a Fleet vehicle providing transportation services. The Services provide you with the ability to monitor your work plan, view and request changes to your work schedules, view holiday status, clock in and out of your work shifts, and access other pertinent information from your Fleet Owner.
- Access and Use. You may access and use the Services through the Driver App solely for the purpose of your own personal use in connection with your position as a driver for your Fleet Owner, and only in a manner that complies with all laws that apply to you. It is strictly prohibited to interact with or use the Services while driving. When you engage with the Services, please do so after having safely stopped your vehicle where and as permitted under applicable law.
- Account Registration. To use the Services, you will need to complete the initial registration of an Account using the temporary password provided to you by your Fleet Owner and will then have the ability to access the Services and create unique login credentials. Thereafter, you may only access your Account using your unique credentials and will be personally responsible for any use made of the Services through your Account.
- Eligibility. The Services are not directed at children. You represent and warrant that you are an individual of legal age sufficient to form a binding contract under applicable law. If you are under 18 years old, please do not use or attempt to register to use the Services.
- LICENSE; USE OBLIGATIONS AND RESTRICTIONS
- License. During the Term (as defined below) and subject to your continued engagement with your Fleet Owner as a driver, we grant you a limited, revocable, non-exclusive, non-sublicensable, non-transferable, royalty-free license to use the Services and any Content, features, functionality, or other services accessible on or through the Services.
- Use Obligations. You hereby warrant and represent that in connection with your use of the Services, you: (a) shall comply with all applicable laws, rules, and regulations, including those regarding data privacy and intellectual property rights; and (b) will not use the Services on your mobile device while operating a motor vehicle in the Fleet.
- Use Restrictions. The Services are provided to you personally. You represent, warrant, and agree that you will not use or interact with the Services, in a manner that: (a) infringes or violates the intellectual property rights or any other rights of anyone else (including Optibus); (b) violates any law or regulation, including, without limitation, any applicable traffic laws or privacy laws; (c) is dangerous, harmful, fraudulent, deceptive, threatening, harassing, defamatory, obscene, or otherwise objectionable; (d) jeopardizes the security of your Account credentials or anyone else’s (such as allowing someone else to log in to the Services as you); (e) attempts, in any manner, to obtain the password, Account, or other security information from any other user; (f) violates the security of any computer network, or cracks any passwords or security encryption codes; (g) attempts to sell, resell, rent, or lease the Services, assign any right provided to you in the Services, grant third parties permission to use the Services or access or attempt to access the Services by any means other than the interface we provided or authorized; (h) “crawls,” “scrapes,” or “spiders” the Driver App or any page, data, or portion of or relating to the Services or Content (through use of manual or automated means); (i) copies or stores any significant portion of the Content; (j) modifies, publishes, publicly displays, transmits, participates in the transfer or sale of, reproduces, creates derivative works based on, or otherwise commercially exploits any of the Services; or (k) decompiles, reverse engineers, or otherwise attempts to obtain the source code or underlying ideas or information of or relating to the Platform or Services. A violation of any of the foregoing is grounds for termination of your right to use or access the Services.
- INTELLECTUAL PROPERTY RIGHTS
- Retention of Rights. As between the Parties, we and our licensors retain all rights, title, and interest in and to the Services, the Driver App, the Platform, and the Content and any of their related intellectual property rights, including to any trademarks. No rights or licenses are granted except as expressly and unambiguously set forth in these Terms. All rights not expressly granted to you under these Terms are reserved by Optibus and its licensors.
- Feedback. To the extent you provide us any feedback, comments, or suggestions related to the Driver App or Services ("Feedback"), you grant us a royalty-free, fully paid up, worldwide, perpetual, and irrevocable license to use and incorporate the Feedback into the Services or any of our current or future products or services.
- DATA
- Ownership of Your Data. As between the Parties, you retain all right, title, and interest in and to Your Data, including all intellectual property rights therein and including any copies and derivative works of any of the foregoing, subject to Sections 4.2 (Feedback), 5.3 (Optibus’ Use of Your Data), and 5.4 (Aggregated and De-Identified Data). You grant us a worldwide, royalty-free, non-exclusive license to host, copy, and use Your Data as required in order to provide you with the Services. For the purposes of these Terms, “Your Data” means any data, information, or other materials provided, uploaded, or submitted by you through the Services or gathered by us through your use thereof.
- Your Responsibilities for Your Data. You, not Optibus, have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership (or right to use) of all of Your Data. The Services are not intended to be used as storage, backup, or archiving services. It is your responsibility to back up Your Data and you are responsible for any lost or unrecoverable data. You represent and warrant that you have all rights and have taken all steps (including obtaining any consents and providing any notices) that are legally required for you to provide us with and instruct us to process Your Data as set forth in these Terms (including, as applicable, the DPA (as defined below)), in each case without any infringement, violation, or misappropriation of any third party rights (including, without limitation, intellectual property rights and rights of privacy). You agree that you shall not provide any information to us that is considered (a) “personal health information,” as defined under the Health Insurance Portability and Accountability Act; (b) government issued identification numbers, including Social Security numbers, drivers’ license numbers, or other state-issued identification numbers; (c) financial account information, including bank account numbers; (d) payment card data, including credit card or debit card numbers; or (e) “sensitive” personal data, as defined under the European Union’s General Data Protection Regulation or any other applicable data privacy law, including political opinions, religious beliefs, ethnicity, trade union membership, physical or mental health or condition, sexual orientation, or the commission or alleged commission any crime or offense.
- Optibus’ Use of Your Data. You authorize us to use Your Data as set forth in our Privacy Policy and these Terms. To the extent applicable to you, our use of Personal Data for purposes of providing you the Services is described in more detail in our data processing addendum (“DPA”), which is hereby incorporated into these Terms by reference. The subject matter, nature, purpose, and duration of processing, as well as the types of Personal Data collected and categories of data subjects, are set forth in the DPA. You agree that we may collect, use, retain, and disclose Personal Data as described in the DPA. Any terms not defined in this paragraph will have the meaning given to them in the DPA.
- Aggregated and De-Identified Data. As part of the Services, we utilize data submitted to, collected by, or generated by us in connection with your use of the Services, but only in de-identified form, from which individual identifiers have been removed, and aggregated form, such that the data can in no way be linked specifically to you or your employees (“Aggregated and De-Identified Data”). You acknowledge and agree that (a) we may internally use and modify Your Data for the purposes of generating Aggregated and De-Identified Data and (b) we may freely use, make available, and retain Aggregated and De-Identified Data for our internal business purposes (including, without limitation, for purposes of improving, testing, operating, promoting and marketing our products, services, and offerings).
- Fleet Data. Once you have registered your Account and connected it with the Platform, we will make available to you through the Services certain data and information managed and provided to us by your Fleet Owner through the Platform, including your schedules, holiday balances, shift matrixes and other data and materials relevant to your engagement as a driver of a Fleet vehicle on behalf of your Fleet Owner (“Fleet Data”). We process Fleet Data solely on behalf of your Fleet Owner and in accordance with their reasonable written instructions and the terms and conditions of these Terms and the DPA. For more information, questions, or requests related to your Fleet Data, please contact your Fleet Owner directly, who is the controller of such data.
- THIRD PARTY MATERIAL AND SERVICES
- Third-Party Material. Third-party and public information, crowd-sourced data, external resources, and any other third-party materials and information may be made available through our Services for your own use ("Third-Party Material"). Such Third-Party Material is provided AS-IS for your convenience and for your own personal non-commercial use, it was not examined or confirmed by us in any way, it might be incomplete or inaccurate, and we cannot guarantee its correctness, precision, or reliability.
- We do not commit to update the Third-Party Material or to update you regarding the existence of specific risk factors before or following an investment. The Third-Party Material made available through our Services is intended to be illustrative rather than definitive. Third-Party Material is protected by copyright, trademark, and other intellectual property laws and you may not use any trademark, trade name, or any other mark of Third-Party Material.
- You may not: (a) download, reproduce, copy, capture into a database, or otherwise duplicate such Third-Party Material; (b) sell, rent, lease loan, license, reproduce, modify, transfer, assign, sublicense, display, distribute, disassemble, reverse engineer or decompile any part of the Third-Party Material, or otherwise use the Third-Party Material on behalf of any third party; or (c) use the Third-Party Material in any infringing, defamatory, harmful, fraudulent, illegal, deceptive, threatening, harassing, or obscene way.
- Third Party Services. The Services may contain links or connections to third-party websites or services that are not owned or controlled by Optibus ("Third-Party Services"). When you access or use Third-Party Services, you accept that there are risks in doing so, and that Optibus is not responsible for such risks. Optibus has no control over, and assumes no responsibility for, the content, accuracy, privacy policies, or practices of or opinions expressed in any Third-Party Services or by any third party that you interact with through the Services. In addition, we will not and cannot monitor, verify, censor, or edit the content of any Third-Party Services. We encourage you to be aware when you leave the Services and to read the terms and conditions and privacy policy of each third-party website or service that you visit or utilize. By using the Services, you release and hold us harmless from any and all liability arising from your use of any Third-Party Services.
- WE DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES ABOUT THE CORRECTNESS, ACCURACY, OR RELIABILITY OF THIRD-PARTY MATERIAL OR THIRD-PARTY SERVICES. YOUR USE OF ANY THIRD-PARTY MATERIAL OR THIRD-PARTY SERVICES IS AT YOUR OWN RISK. UNDER NO CIRCUMSTANCES WILL WE BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY RELIANCE ON THIRD-PARTY MATERIAL OR THIRD-PARTY SERVICES AVAILABLE THROUGH THE SERVICES.
- CONFIDENTIALITY
- During the Term, either Party may disclose or make available (“Disclosing Party”) to the other Party (“Receiving Party”), whether orally, electronically or in physical form, confidential information concerning Disclosing Party and/or its business, technology, products, or services that is marked or identified as “confidential” or “proprietary” at the time of disclosure or is disclosed in such a manner or is of such a nature that a reasonable person would understand such information to be confidential or proprietary (“Confidential Information”). Customer Data is your Confidential Information and Aggregated and De-Identified Data is our Confidential Information. Each Receiving Party agrees that during the Term of these Terms and thereafter: (a) it will use Disclosing Party’s Confidential Information solely for the purposes of permitted by these Terms and (b) it will not disclose Disclosing Party’s Confidential Information to any third party (other than Receiving Party’s employees, contractors and/or professional advisors on a need-to-know basis who are bound by obligations consistent with those contained herein) without first obtaining Disclosing Party’s prior written consent. Upon request by Disclosing Party, Receiving Party will return or destroy Disclosing Party’s Confidential Information.
- Confidential Information will not include any information that: (a) is or becomes generally known, through no act or omission of Receiving Party, (b) was previously known by Receiving Party without restriction, (c) is disclosed to Receiving Party by a third party without restriction and without breach of any separate nondisclosure obligation, or (d) was independently developed by Receiving Party without use of or reference to any of Disclosing Party’s Confidential Information. Receiving Party may disclose Disclosing Party’s Confidential Information to the extent it is legally compelled to do so; provided that prior to any such disclosure, Receiving Party will, to the extent legally permitted, (i) promptly notify Disclosing Party of such requirement to disclose and (ii) cooperate with Disclosing Party, at Disclosing Party’s expense, in protecting against or minimizing any such disclosure or obtaining a protective order.
- Receiving Party acknowledges and agrees that: (a) unauthorized disclosure or use of Disclosing Party’s Confidential Information may cause Disclosing Party irreparable harm and significant injury, the extent of which will be difficult to ascertain and for which there may be no adequate remedy at law and (b) Disclosing Party, without limitation, shall have the right to seek immediate injunctive or other equitable relief enjoining any breach or threatened breach hereof, without posting bond or other security and without proving actual damages.
- The terms in this Section 7 will not apply to any Breach (as defined in Section 8 below). Breaches will be governed exclusively by the terms in Section 8.
- DATA SECURITY
- Optibus agrees to use commercially reasonable technical and organizational measures designed to prevent unauthorized access, use, alteration, or disclosure of Your Data. If we become aware that any of Your Data held by us has been accessed by a third party without authorization or otherwise illegally hacked (a “Breach”), we will, to the extent legally permitted, notify you as soon as reasonably practical and will reasonably cooperate with Customer to remediate the unauthorized access.
- INDEMNIFICATION
- Indemnification by Optibus. We shall defend at our sole expense and indemnify Driver from all third party actions, claims and proceedings and pay all damages, liabilities and expenses that are finally awarded in a judgement or agreed to in a settlement (“Losses”) that arise from or relate to any claim that the Services or a part thereof, when used as intended, infringes, violates, or misappropriates any third-party intellectual property or proprietary right.
- Indemnification by Driver. You shall defend at your sole expense and indemnify Optibus, its affiliates and each of its and its affiliates’ directors, officers, shareholders, employees and agents from Losses that arise from or relate to (a) any claim that Your Data infringes, violates, or misappropriates any third-party intellectual property, privacy, or proprietary right; or (b) any claim arising from your use of the Services in violation of these Terms or applicable law.
- Procedure. Each Party’s indemnification obligations hereunder shall be conditioned upon the other Party as indemnitee providing the indemnifying party with: (a) prompt written notice of any claim (provided that a failure to provide such notice shall only relieve the indemnifying party of its indemnity obligations if the indemnifying party is materially prejudiced thereby); (b) sole control over the defense and settlement of any claim, provided that the other Party as indemnitee may participate in such defense and settlement at its own expense and provided further that the indemnifying party shall not agree to a settlement for anything other than monetary damages without the consent of the indemnitee; and (c) reasonable information and assistance in connection with such defense and settlement, at the indemnifying Party’s expense.
- DISCLAIMER OF WARRANTY
- Optibus and its licensors, suppliers, authorized partners, parent, subsidiaries or affiliated entities, and each of their respective officers, directors, members, employees, consultants, contract employees, representatives, and agents, and each of their respective successors and assigns (Optibus and all such parties together, the “Optibus Parties”) make no representations or warranties concerning the Services, including without limitation regarding any Content or Third-Party Services contained in or accessed through the Services or any part thereof, and the Optibus Parties will not be responsible or liable for the accuracy, reliability, copyright compliance, or legality of material contained in or accessed through the Services or any claims, actions, suits procedures, costs, expenses, damages, or liabilities arising out of your use of, or in any way related to your participation in, the Services.
- THE OPTIBUS PARTIES DO NOT ASSUME ANY RESPONSIBILITY OR LIABILITY FOR ANY DECISION MADE OR ACTION TAKEN OR NOT TAKEN IN RELIANCE ON THE CONTENT OR INFORMATION RECEIVED OR DERIVED FROM THE USE OF, OR GENERATED BY, THE SERVICES, NOR DO OPTIBUS OR ITS SERVICE PROVIDERS ASSUME ANY RESPONSIBILITY FOR ANY LOSS, INJURY, OR DAMAGES OF ANY KIND OR CHARACTER INCURRED AS A RESULT OF, IN CONNECTION WITH, OR IN ANY WAY RELATING TO YOUR USE OF THE SERVICES, OR ANY DECISION MADE OR ACTION TAKEN OR NOT TAKEN IN RELIANCE ON THE SERVICES OR ANY CONTENT OR OTHER INFORMATION RECEIVED OR DERIVED FROM, OR GENERATED BY, YOUR USE OF THE SERVICES.
- TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES, THE DRIVER APP, THE CONTENT, AND ANY THIRD-PARTY SERVICES OR THIRD-PARTY MATERIALS ARE PROVIDED BY OPTIBUS (AND ITS LICENSORS AND PARTNERS) ON AN “AS-IS” AND "AS AVAILABLE" BASIS, WITHOUT WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF USE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT USE OF THE SERVICES OR ANY PART THEREOF WILL BE SECURE, UNINTERRUPTED, OR ERROR-FREE. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
- LIMITATION OF LIABILITY
- TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, STRICT LIABILITY, NEGLIGENCE OR OTHERWISE) SHALL ANY OF THE OPTIBUS PARTIES BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR FOR DAMAGES FOR LOST PROFITS, LOST REVENUE, BUSINESS INTERRUPTION, LOSS OF DATA, OR LOSS OF GOODWILL, IN EACH CASE ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE SERVICES, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY AND EVEN IF OPTIBUS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; (B) THE COST OF ANY SUBSTITUTE GOODS, SERVICES, OR TECHNOLOGY; (C) ANY AMOUNT, IN THE AGGREGATE, IN EXCESS OF THE GREATER OF (I) ONE-HUNDRED ($100) DOLLARS OR (II) THE AGGREGATE AMOUNTS PAID AND/OR PAYABLE BY YOU TO OPTIBUS IN CONNECTION WITH THE USE OF THE SERVICES IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY; OR (D) ANY MATTER BEYOND OUR REASONABLE CONTROL. THESE LIMITATIONS WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
- THE LIMITATIONS CONTAINED IN SECTION 11.1(C) ABOVE WILL NOT APPLY TO BREACHES OF CONFIDENTIALITY OR A PARTY’S INDEMNIFICATION OBLIGATIONS.
- TERM AND TERMINATION
- Term. These Terms commence on the date you first accept them and will remain in effect until these Terms are terminated in accordance with these Terms or your Account connection with the Platform is severed by your Fleet Owner (the “Term”).
- Termination. You may stop using the Services at any time and you may delete your Account. We may suspend or terminate your access to the Services at any time, at our discretion and without prior notice, if you are in breach of these Terms. Upon termination of the Services to you, your Account will be terminated, and from the date of termination you will no longer be able to access your Account. Upon termination of these Terms, all licenses granted hereunder shall expire and you shall stop using the Services.
- Survival. The provisions of these Terms that, by their nature and content, must survive the termination of these Terms in order to achieve their fundamental purpose, shall survive. Without limiting the generality of the foregoing, any obligation you have to pay us or indemnify us, any limitations on our liability, any terms regarding ownership, intellectual property rights, Feedback, and terms regarding disputes between us, and the general section, will survive the termination of these Terms.
- MODIFICATIONS TO THE SERVICES OR THESE TERMS
- We may from time to time suspend or discontinue any part of the Services, or we may introduce new products or features or impose limits on certain existing features or otherwise restrict access to parts or all of the Services at our discretion. We’ll try to give you notice when we make a material change to the Services that would adversely affect you or your use of the Services. We reserve the right to remove any Content from the Services at any time, for any reason (including, but not limited to, if someone alleges that Content violates their rights or these Terms), in our sole discretion, and without notice. We may also modify or revise these Terms from time to time, and such change will become effective upon the date on which the updated Terms are published. You are responsible for checking regularly for such changes. By continuing to access or use the Services, you agree to be bound by the revised Terms as published.
- GENERAL
- Governing Law and Jurisdiction. These Terms are governed by the laws of the State of Israel without regard to conflicts of law principles and the courts in Tel-Aviv, Israel will have exclusive jurisdiction; however, Optibus or its affiliate may seek injunctive relief where you, or the entity you represent, are located. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply.
- Severability. If any part of these Terms is deemed unlawful, void, or unenforceable for any reason, then such part shall be deemed to be severable from the rest of these Terms and shall not affect the validity and enforceability of any of the remaining provisions of these Terms. In such cases, the part deemed invalid or unenforceable shall be construed in a manner consistent with applicable law to reflect, as closely as possible, the original intent of these Terms.
- Waiver. No waiver by a Party of a breach of any of the provisions of these Terms shall be construed as a waiver of any preceding or succeeding breach of any of the provisions of these Terms.
- Relationship. Nothing in these Terms or your use of the Services shall be construed as creating any agency, partnership, trust arrangement, fiduciary relationship, or any other form of joint enterprise between you and Optibus or anyone on its behalf.
- Entire Agreement. These Terms contain the entire agreement between Optibus, and you relating to your use of the Services and supersedes any and all prior written or oral agreements between the Parties in relation to the same. You confirm that, in agreeing to accept these Terms, you have not relied on any representation except as has expressly been made by Optibus in these Terms.
- Assignment. You may not assign your rights or delegate your obligations under these Terms without Optibus’ prior written consent. Optibus may assign its rights or obligations hereunder without restriction. Any purported assignment contrary to this section will be null and void.
- No Third-Party Rights. There are no third-party beneficiaries intended under these Terms.
- Notices. All notices delivered by Optibus to you under these Terms will be delivered via email or regular mail to the addresses registered to your Account. Notices to Optibus under these Terms must be sent by email to legal@optibus.com with subject line ATTN: Legal Department.
- CONTACT US
- If you have any questions, comments, or concerns regarding these Terms or our Services, please contact us at support@optibus.com.