Ride-hailing platform inDrive states in its Terms of Use that it will not be liable or accountable to either its drivers or its passengers, regardless of what happens before, during or after a trip. The terms, drafted by the company's legal team, are consented to by the thousands of drivers and riders who use the platform.

In practical terms, if an incident occurs during a trip — even one leading to theft, loss of property, harm, injury or even death — the company is not legally bound to be concerned.

What the Terms of Use Say

Section 11 of inDrive's Terms of Use, titled "InDrive's Liability," expressly states:

To the maximum extent permitted by law, in no event shall inDrive be liable to you or anyone for any direct, indirect, punitive, economic, future special, exemplary, incidental, consequential, or other damages or losses of any type or kind (including but not limited to personal injury, emotional distress and loss of data, goods, revenue, profits, use or other economic advantage), whether arising in contract, tort (including negligence) or otherwise arising out of, or in any way connected with the Platform, including but not limited to the use or inability to use them, any reliance placed by you on the completeness, accuracy or existence of any advertising, or as a result of any relationship or transaction between you and any Driver even if inDrive has been previously advised of the possibility of such damages.

The subsection titled "Third Party Services" is clearer still, and perhaps more emphatic:

"No joint venture, partnership, employment, or agency relationship exists between inDrive any of our users. To the maximum extent permitted by law, inDrive is not responsible for the acts or omissions of any Driver or Passenger or any of the Services. inDrive will not be a party to disputes or negotiations between Platform users. You expressly waive and release inDrive from any and all liability, claims, causes of action, or damages related to your use of the Platform in dealings with other Platform users," the company says.

A separate clause, titled "Indemnity," removes any remaining ambiguity, as the company requires users to let it off every hook:

You agree to defend, indemnify and hold inDrive and its affiliates, subsidiaries and their officers, directors, employees and agents harmless from any and all claims, demands, losses, liabilities, and expenses (including reasonable attorneys' fees) arising out of or in connection with: (a) your use of the Platform or the Services; (b) your breach or violation of any of these Terms, any applicable law or regulation, or the rights of any third party (collectively, "Losses").

Legal Perspective on the Terms

Commenting on the liability clause, UK-based legal practitioner Tobi Adebowale explained that, in simple terms, the company has said it provides only a middleman service, leaving the driver to bear all the risk for using its platform.

"If a rider sues inDrive and the driver, the driver bears the cost of the court case and has to pay inDrive the money the company spends on legal fees because of that court case. They have essentially denied responsibility for anything that goes wrong while the driver uses their platform and if they get involved in dispute with a passenger," he said.

Adebowale further explained that indemnity clauses are usually included in most contracts and terms of service of this nature. However, the service provider would typically state that it accepts liability for issues that arise from its own negligence or fraudulent action.

"inDrive hasn't done that," he said.

A Sharp Contrast With Bolt

This is in sharp contrast with the liability provisions in the terms of Bolt, which expressly state that the company would accept liability to the tune of N700,000 for property damage or monetary loss, loss of profit, business, revenue, contracts, contacts, goodwill, reputation, or anticipated savings, and any loss arising from the interruption or use of its platform.

"Bolt's maximum aggregate liability to you in connection with these Platform Terms is capped at Naira Seven Hundred Thousand (N 700,000). This cap applies regardless of the number of claims made or the number of events giving rise to liability," Bolt's terms and conditions read.

The platform also accepts full responsibility and liability if its negligence leads to death and personal injury, or any other lawful harm.

"Bolt's terms reflect market standards to a certain extent, especially as they provide for amounts they can be sued for, and accept they will be responsible for losses arising from their negligence. However, inDrive's terms are aggressive and can be said to be one-sided," Adebowale said.

The Limits of the Disclaimer

That inDrive refuses to take any liability does not mean it never will if push comes to shove. The terms of use themselves state that they come without limiting the application of any laws and regulations. In other words, the terms apply only to the extent Nigerian law permits — an acknowledgment that a court can rule that the company should bear responsibility for certain losses resulting from its actions.

Adebowale pointed out that some of the provisions in the company's terms of use will likely go against the fairness standards under the Federal Competition and Consumer Protection Act (FCCPA) 2018, which protects consumers against unfair, unreasonable or unjust contract terms. The 2018 Act also established the Federal Competition and Consumer Protection Commission (FCCPC), the regulator charged with enforcing those standards.

"A Nigerian court will typically not allow a company to hide behind its terms of service to avoid responsibility for its negligence or fraud. The courts can intervene to ensure fairness of contract terms, especially where one of the parties to the contract drafts the terms, and the other can only accept. Courts typically enforce against the drafter in certain situations even if parties are generally free to decide the terms of a contract," he noted.

He further explained that a court will likely not uphold the indemnity provision in inDrive's terms of service in the event of death, especially where there is evidence the company had some responsibility, directly or indirectly, for the incident.

In a nutshell, the company refuses all liability and only gives room for instances where the law imposes liability on it — meaning a driver has to go to court or a regulator to establish that.

"Drivers and users of these platforms shouldn't assume they have no rights just because the terms say so. It may be difficult to read the terms before using the services, but in the event of a dispute with the company, it is best to consult a lawyer before having a conversation with the company," Adebowale advised.

TechNext24 contacted an inDrive spokesperson on the matter but had not received a response as of the time of publication. For now, the provisions stand as written; whether a Nigerian court or regulator will be asked to test them — and whether inDrive revises its terms — remains an open question.

Source: TechNext24