1. Statement of evaluation
You acknowledge that you have read, understood and agree to be bound by all terms and conditions of this agreement, as well as any additional rules or policies that are or may be published by Emergency Road Services Corporation (E.R.S. Corp.) from time to time. This agreement in addition to any other rules and policies, make up the complete and exclusive agreement between your company and E.R.S. Corp. regarding your use of the services provided by E.R.S. Corp..

2. Amendments to agreement
We may amend this agreement at any time by e-mail or in writing and unless otherwise stated, all amendments will be effective immediately. This agreement may not be otherwise amended except in writing signed by both parties. Your use of E.R.S. Corp.’s services after each amendment shall constitute your acceptance of any such amendment to this or future agreements. If you do not agree to any of such changes, you may terminate your business relationship with E.R.S. Corp..

3. Term of the agreement
The term of this agreement begins upon the acceptance of your application for E.R.S. Corp.’s services, and ends when terminated by either party. Either you or E.R.S. Corp. may terminate this agreement at any time, for any reason or no reason, by giving or not giving the other party written notice of termination. In the event this agreement is terminated, you agree that all outstanding amounts will be paid as per E.R.S. Corp.’s credit terms.

4. Suspension of services
We may from time to time without notice suspend our services or deny your access to our services during the following situations:

• During any technical failure, modification or maintenance involved in our established infrastructure provided that we will use reasonable endeavours to procure the resumption of our services as soon as reasonably practicable.
• If you fail to comply with any provision in this agreement including failing to pay charges due.
• If you do, or allow to be done, anything which in our opinion may have the effect of jeopardizing the operation of our services, until the breach (if capable of remedy) is remedied.
• Notwithstanding any suspension of our services under this clause you shall remain liable for all charges due.

If your account has been suspended or terminated, reactivation of your account will be completely at our discretion. If we agree to reactivate your account, we will require payment in full of all outstanding amounts.

5. Customer warranties
You warrant that:

• If you are not the customer, you have the power and authority to enter into this agreement on behalf of the customer and will indemnify E.R.S. Corp. for any breach of this agreement by the customer.
• At the time of entering into this agreement you are not relying on any representation made by us which has not been stated expressly in this agreement, or on any descriptions or specifications contained in any other document.
• Your use of and your participation in E.R.S. Corp.’s services is provided on an “as is” and “as available” basis. E.R.S. Corp. expressly disclaims all warranties of any kind, whether express or implied, including, but not limited to, the implied warranties of merchantability, fitness for a particular purpose and non-infringement with respect to it’s services.

6. Our responsibilities
E.R.S. Corp. agrees to provide our services to you in accordance with these terms and conditions and any special conditions agreed upon between the two parties in writing. In carrying out its services, E.R.S. Corp. undertakes to the customer that it shall use its reasonable endeavors to undertake its services in accordance with good systematic practices and within a reasonable time frame and at all times exercising reasonable skill and care. E.R.S. Corp. will be solely responsible for processing every service call placed by a customer, for dispatching the appropriate service provider and for tracking the service call from start to finish. E.R.S. Corp. will also be responsible for paying all service providers in a timely manner and will be responsible for all related customer service issues.

7. Customer responsibilities
As an E.R.S. Corp. customer, you agree to the following responsibilities:

• You will keep secure any account numbers, user names and passwords given to you by E.R.S. Corp..
• You agree to make sure everyone in your company is aware of this agreement and its terms and conditions.
• You agree to pay for the services we provide for you no matter who uses them at your company if your account number, user name and password are given at time of service call.
• You agree to make sure all information you give us is correct and complete.
• You agree that once your company has called E.R.S. Corp. to provide a service call, your company will be responsible for any charges incurred by E.R.S. Corp., including the E.R.S. Corp. co-ordination fee, even if you cancel the service call before any work is completed.

8. Acknowledgements
You understand that the operation of E.R.S. Corp. and its service providers may not be uninterrupted or error free and may at times make errors and omissions. You agree that E.R.S. Corp. will not be liable for any interruptions or errors in its service. You also acknowledge that E.R.S. Corp. does not warrant or make any representations regarding the use or the results of the use of its services, in terms of its correctness, accuracy, timeliness, reliability or otherwise.

9. Relationships of the parties
You and E.R.S. Corp. are independent companies, and nothing in this agreement creates any partnership, joint venture, agency, franchise, sales representative or employment relationship between you and E.R.S. Corp.. You understand that you do not have authority to make or accept any offers or make any representations on behalf of E.R.S. Corp.. Nothing in this agreement shall be construed to grant you any right, interest in or license to the services offered by E.R.S. Corp..

10. User names and passwords
Upon approval of your application, E.R.S. Corp. will issue you an account number, user name and password which will enable you to request our services. This account number, user name and password must be given to our customer service representative every time you request our services. You are responsible for maintaining the confidentiality of your account number, user name and password and are fully responsible for all activities, charges and/or liabilities that occur under your account number, user name and password whether or not authorized by you. You will immediately notify E.R.S. Corp. of any unauthorized use of your account number, user name and password or any other breach of security.

11. Publicity
You may not create, publish nor distribute any items that reference E.R.S. Corp. without first submitting those items to E.R.S. Corp. and receiving written consent.

12. Warranty on services provided
Warranty on services provided will be limited to the individual service provider’s warranty policy which will be extended to your company directly. E.R.S. Corp. will provide your company with all the relevant information pertaining to the individual service call. It will be your company’s sole responsibility to contact the service provider involved to resolve the warranty issue. E.R.S. Corp. will make every effort possible to help you with any warranty issue but will in no way be responsible for any costs incurred by your company due to a warranty dispute.

13. Indemnification
You agree to release, indemnify, defend and hold harmless E.R.S. Corp., its subsidiaries, affiliates, officers, directors, employees, agents and advisors, from and against any and all losses, liabilities, claims (including claims brought in bad faith or without legal merit), demands, damages, costs or expenses, causes of action, suits, proceedings, judgments, awards, executions and liens, including reasonable attorneys’ fees and costs (whether brought by third parties or otherwise)(collectively, “claims”) due to or arising out of your use of our services. E.R.S. Corp. reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you hereunder, and in such event, you shall have no further obligation to provide indemnification for such matter.

14. Limitation of liability
You acknowledge and agree that E.R.S. Corp. will not be liable, under any circumstances, for any indirect, special, incidental, or consequential damages of any kind (including lost profits) regardless of the form of action whether in contract, tort (including negligence), or otherwise, even if E.R.S. Corp. has been advised of the possibility of such damages. In no event shall E.R.S. Corp.’s maximum aggregate liability exceed the total amount paid by you for the services.

15. Severability
If any part of this agreement is unenforceable, such unenforceability shall not affect the enforceability of the remainder of the agreement.

16. Uncontrollable circumstances
E.R.S. Corp.’s performance under this agreement shall be excused to the extent that its performance is hindered, delayed or made commercially impractical by causes beyond its reasonable control.

17. Service call cancellation charges
You acknowledge that if you have submitted a service call and E.R.S. Corp. begins its dispatch process, you will be charged a cancellation fee if you cancel your service call. You further acknowledge that in the event the service provider we have dispatched decides to invoice E.R.S. Corp. for their time, you not only have to pay the full cost of the service provider’s invoice but also the full E.R.S. Corp. coordination fee.

18. Search fee charges
Although highly unlikely, in the event that E.R.S. Corp. can not find a service provider to service your vehicle, you acknowledge that you will be charged a search fee in order for E.R.S. Corp. to recover some of its costs to conduct the search. E.R.S. Corp. will call every available service provider in your area before the search fee will apply.

19. Applicable laws
Both parties hereby agree that this agreement shall be interpreted and governed by the laws of Ontario and the applicable laws of Canada herein, with out regard to its conflict of law provisions. Furthermore, both parties hereby elect to submit to the exclusive jurisdiction of the courts of the province of Ontario in respect of any action or proceeding arising out of or related to this agreement without prejudice however to the rights of E.R.S. Corp. to obtain any protective proceedings such as an injunction from any competent court having jurisdiction.

20. Dispute resolution
E.R.S. Corp. and the customer shall in good faith attempt to negotiate a settlement to any dispute between them arising out of or in connection with this agreement. If any such dispute cannot be resolved in good faith, the dispute may, by agreement between E.R.S. Corp. and the customer, be referred to mediation.