Onward Terms of Service
This Terms of Service (this "Agreement") is agreed to between Onward Care, Inc., a Delaware corporation ("Onward") and you, or, if you represent an entity or other organization, that entity or organization (in either case "You").
Onward offers a platform through a site or application for driver assistance and other related care services (the "Platform"). You may access the Platform through the website located at www.onwardrides.com and through various other websites operated by Onward (each a "Site") or using mobile and online applications provided by and on behalf of Onward (each, an "Application ," and each Site and Application treated as a part of the "Platform" for purposes of this Agreement).
The Platform provides end users seeking driver and other related services ("Riders") with the ability to access information, data, and other content ("Content"); third party drive share services ("Drivers ," collectively with Riders, "Users"); and, third party provider offerings related to riding and driving services, or other care services, through the Platform (collectively, the "Services").
This Agreement applies to the Platform, and Content and Services available through the Platform, regardless of the Site or Application through which You access or use the Platform, Content, or Services. PLEASE CAREFULLY READ THIS AGREEMENT. BY ACCESSING OR USING THE PLATFORM, CONTENT, OR SERVICES, OR BY CLICKING A BOX THAT STATES THAT YOU ACCEPT OR AGREE TO THIS AGREEMENT, YOU AGREE THAT YOU HAVE READ AND AGREE TO BE BOUND BY THIS AGREEMENT.
IF YOU DO NOT AGREE TO THIS AGREEMENT, OR DO NOT MEET THE QUALIFICATIONS INCLUDED IN THIS AGREEMENT, ONWARD IS NOT WILLING TO PROVIDE YOU WITH ACCESS TO OR USE OF THE PLATFORM, CONTENT, OR SERVICES AND YOU MUST NOT ACCESS OR USE THE PLATFORM, CONTENT, OR SERVICES. IF YOU ACCESS OR USE THE PLATFORM, CONTENT, OR SERVICES, YOU ACKNOWLEDGE THAT YOU MEET THE QUALIFICATIONS INCLUDED IN THIS AGREEMENT.
You should carefully read this Agreement, including the required use of arbitration on an individual basis to resolve disputes, rather than jury trials or class actions, and the limitations on the remedies available to You in the event of a dispute, as fully described in the "DISPUTE RESOLUTION/CLASS-ARBITRATION WAIVER" section of this Agreement.
Unless You later enter into any other agreements with Onward regarding the Platform, Content, or Services, this Agreement is the complete and exclusive agreement between You and Onward regarding Your access to and use of the Platform, Content, and Services. This Agreement supersedes any prior agreement or proposal, oral or written, and any other communications between You and Onward relating to Your use of the Platform, Content, or Services as a User of the Platform.
DEFINITIONS. Terms used in this Agreement have the definitions given in this Agreement or, if not defined in this Agreement, have their plain English meaning as commonly interpreted in the United States.
TERM. This Agreement is entered into as of the earlier of the date You first download or install any Application or first access or use the Platform, Content, or Services (the "Effective Date") and will continue until terminated as set forth herein.
MODIFICATIONS. Onward may, at any time, modify or discontinue all or part of the Platform, Content, or Services; change, modify or waive fees required to use the Platform, Content, or Services; or offer opportunities to some or all Users. Onward also reserves the right, at any time, to modify this Agreement. Onward will inform You of the presence of any changes to this Agreement by posting those changes on the Platform or by providing You with notice through the Platform. Any modifications will be effective immediately upon posting on the Platform or delivery of such notice through the Platform. You may terminate this Agreement as set forth below if You object to any such modifications. However, You will be deemed to have agreed to any and all modifications through Your continued use of the Platform, Content, or Services following such notice period.
RIDER ELIGIBILITY AND NOTICE.
- Rider Eligibility. The Platform, Content, and Services are intended for use by Riders 18 years of age and older. If You are under age 16, do not attempt to access or use the Platform, Content, or Services. If You are 16 or older but younger than 18, then You may access and use the Platform, Content, and Services only if Your parent or guardian accepts this Agreement on Your behalf. Your parent or guardian must agree to be solely responsible for Your access to and use of the Platform, Content, or Services. You represent and warrant that You have never been: (a) the subject of a complaint, restraining order or any other legal action including, without limitation, arrested for, charged with, or convicted of any felony, any criminal offense involving violence, abuse, neglect, fraud or larceny, or any offense that involves endangering the safety of others, dishonesty, negligence or drugs; or (b) registered, or currently required to register, as a sex offender with any government entity.
- Notice to Riders. The Platform matches Drivers, who are independent contractors, with Riders who need extra assistance during their ride. While Riders are connected with Drivers through the Platform and will most likely be vetted and screened through the Onward Driver onboarding process, Onward has no obligation to do so nor to verify the capacity, suitability, or background of the Driver. Onward will work to provide the best Drivers, but the Rider should make their own assessment of the Drivers that they coordinate with or otherwise interact with through the Platform. Because the Platform connects Riders to Drivers, Users are responsible and liable for any services provided by such Users through the Platform, except where it is explicitly noted in this Agreement. Drivers provide their own cars and equipment. Onward does not control, supervise, or provide any training or equipment to Drivers. Drivers are responsible for their own driving behavior. Onward is not responsible for the quality, timing, failure to provide, legality, or any other aspect of the driving related services provided by Drivers. To make the Platform easy to use and convenient for both Rides and Drivers, Onward will help to match Riders with Drivers. However, Users are ultimately responsible for arranging assistance between themselves. Onward will not participate in any disputes that arise between Users and Riders use the Platform at your own risk. While Onward will help facilitate a drive between Drivers and Riders, Onward shall not have any liability in any way related to the transaction and relationships between Users..
DRIVER ELIGIBILITY AND NOTICE.
- Driver Eligibility. The Platform, Content, and Services are intended for use by Drivers 21 years of age and older. You represent and warrant that: (a) You are an individual at least 21 years of age; (b) You have the legal right to work in the United States; (c) You have never been the subject of a complaint, restraining order or any other legal action including, without limitation, arrested for, charged with, or convicted of any felony, any criminal offense involving violence, abuse, neglect, fraud or larceny, or any offense that involves endangering the safety of others, dishonesty, negligence or drugs; (d) You have never been registered, or currently required to register, as a sex offender with any government entity; and (e) You have, and will maintain, general liability insurance with coverage of at least $250,000 to cover Your obligations hereunder in the event of injury to You or others. Onward shall conduct background checks through the use of third party service providers or to verify Your User Account and Registration Information, and any representations and warranties that You have made. You agree to provide Onward with identification documents (including copies of a passport or driver's license) as may be requested by Onward. Onward may track Your driving location and habits and share that information with third parties. Onward may also require Drivers to comply with its driver-related policies, which may be updated from time-to-time, such as its (i) Driver Certifications & Qualifications; (ii) Driver Screening Policies; (iii) Incident and Accident Protocols; (iv) Vehicle Inspection; and (v) Vehicle Requirements.
- Notice to Drivers. YOU AGREE THAT ONWARD IS NOT AN EMPLOYMENT SERVICE AND DOES NOT SERVE AS AN EMPLOYER OF ANY USER. USERS ARE SOLELY RESPONSIBLE (AND ONWARD IS NOT RESPONSIBLE), FOR ANY TAX, WITHHOLDING OR REPORTING, INCLUDING, BUT NOT LIMITED TO UNEMPLOYMENT INSURANCE, SOCIAL SECURITY, OR PAYROLL WITHHOLDING TAX OR INCOME REPORTING IN CONNECTION WITH ANY SERVICES PROVIDED BY USERS. YOU UNDERSTAND AND AGREE THAT IF ONWARD IS FOUND TO BE LIABLE FOR ANY TAX, WITHHOLDING TAX, OR REPORTING OBLIGATION IN CONNECTION WITH ANY SERVICES PROVIDED OR RECEIVED BY YOU, THEN YOU WILL IMMEDIATELY REIMBURSE AND INDEMNIFY ONWARD FOR ALL COSTS, EXPENSES, AND LIABILITIES (INCLUDING ANY INTEREST AND PENALTIES) RELATING TO SUCH LIABILITY. Onward has no obligation to screen or verify the capacity, suitability, or background of Riders. It is Your responsibility to make Your own assessment of the Riders that You coordinate with or otherwise interact with through the Platform. Onward will not participate in disputes between Users. You use of the services available through the Platform at Your own risk. Onward shall not have any liability in any way related to transactions or relationships between Users.
- 3Background Checks. Onward shall conduct background checks, in accordance with its then current background check policy, through the use of third party service providers or to verify Your User Account and Registration Information, and any representations and warranties that You have made. Onward may verify the eligibility conditions or conduct any other screenings, verifications or background checks, in its sole discretion, and You hereby authorize Onward to verify any or all of the above representations and warranties You make or the other information You provide. Onward may use any third party consumer reporting agency to complete such background check. Such verification may include, without limitation, conducting criminal background checks, sex offender registry checks, motor vehicle records checks, identification verifications, credit checks, or using available public records. You consent to any collection, use, or disclosure in order to accomplish such verification. You agree that Onward may take such action as it deems appropriate in its sole discretion, including without limitation suspending or terminating Your account, should it determine, in its sole discretion, that You have violated any representation or warranty or any other provision of this Agreement or it otherwise determines in its sole discretion that such suspension or termination is appropriate for any reason. In the event of any suspension or termination, You agree to make no further use of the Service after termination or during suspension.
- Users. You are permitted to access certain Content and Services without establishing a user account on the Platform, provided that You have agreed to this Agreement. However, access to and use of certain Content and Services may require that You establish a user account (a "User Account") on the Platform. Approval of Your request to establish a User Account will be at the sole discretion of Onward. If You are the Account Authority (as defined below), You may authorize designated individuals to use and access the Platform, Content, and Services on Your behalf through Your User Account (You and each such individual, as applicable, a "User" of Your User Account). If a User Account is only associated with You, then You may use and access the Platform, Content, and Services through Your User Account as the sole User of the User Account. Each user identification and password for Your User Account (each, "Account ID") is personal in nature and may be used only by You or, as applicable, the User to whom the Account ID is issued.
- Responsibilities. You are solely responsible for all access to and use of Your User Account (whether authorized or unauthorized), including all Content and Services accessed through Your User Account. Onward may deem any actions taken through Your Account to have been authorized by You. You are responsible for compliance, and the compliance any other Users of Your User Account, with this Agreement. You will ensure the security and confidentiality of each Account ID and will notify Onward immediately if any Account ID is lost, stolen, or otherwise compromised. You acknowledge that You are fully responsible for all costs, fees, liabilities, or damages incurred, and material transferred, stored, modified, or shared through the use of each Account ID (whether lawful or unlawful). You acknowledge that any orders made or other transactions completed through Your User Account will be deemed to have been lawfully completed by You. In no event will Onward be liable for the foregoing obligations or the failure by You to fulfill such obligations.
- Account Authority. If a User Account is associated with multiple Users, then the individual who establishes Your User Account (the "Account Authority") will have control over Your User Account. If a User Account is only associated with You, then You will be the Account Authority for Your User Account, unless You designate a different Account Authority as specified below. Onward may deem the Account Authority to have full authority for all decisions relating to Your User Account, including: (a) addition or removal of Users; (b) permissions to access Your User Account; (c) disputes regarding Your User Account; (d) notices and other communications relating to Your User Account; and (e) any other decisions that may be required regarding Your User Account. There must always be one and only one Account Authority for each User Account. The initial Account Authority must be designated in the initial request to establish a User Account. If an initial Account Authority is not designated, the individual requesting to establish a User Account shall be deemed the initial Account Authority for that User Account. The Account Authority may be changed: (i) by an email sent to Onward from the registered email address of the current Account Authority; (ii) by written notice provided to Onward; or (iii) as separately directed and acknowledged by Onward. It is Your responsibility to properly designate a new Account Authority whenever appropriate. In the event of a dispute where multiple persons claim to be the rightful Account Authority, Onward reserves the right, at its sole discretion, to: (1) suspend all access to Your User Account until an Account Authority is properly designated to Onward's sole satisfaction; or (2) terminate Your User Account and delete Your Registration Information.
- User Content. "User Content" means any and all information and content that You or any other User submits to, or use with, the Platform (e.g., content uploaded or tagged or in a public profile or posting, Registration Information, photo, or transportation related information), including Reviews (as defined below). You are solely responsible for Your User Content. You assume all risks associated with use of Your User Content, including any reliance on its accuracy, completeness, or usefulness by other Users, or any disclosure of Your User Content that makes You or any third party personally identifiable. You hereby represent and warrant that Your User Content does not violate the Acceptable Use Policy (defined below). You may not state or imply that Your User Content is in any way provided, sponsored or endorsed by Onward. Because You alone are responsible for Your User Content (and not Onward), You may expose Yourself to liability if, for example, Your User Content violates the Acceptable Use Policy. Onward is not obligated to back-up any User Content. Onward may delete User Content at any time, for any reason or no reason, without notice. If Your User Content is not shown on or is deleted from the Platform, You may contact Onward as provided herein with evidence of such User Content's compliance with applicable Laws (as defined below). Users may have the opportunity to provide reviews and recommendations about other Users ("Reviews"). You agree that Onward has no obligation to remove any Reviews or other information posted on the Platform about You or any other person or entity. You may not terminate Your User Account and re-register in order to prevent a Review from being associated with You.
- To the Platform. Subject to Your compliance with this Agreement, Onward will permit You to access and use the Platform, Content, and Services solely for lawful purposes and only in accordance with the terms of this Agreement and any other agreement You agree to with Onward before being given access to any specific aspects of the Platform. Any additional agreement is in addition to this Agreement and will govern Your use of the portions of the Platform to which the additional agreement applies in the event of a conflict between the terms of this Agreement and the additional agreement.
- To Applications. Subject to Your compliance with this Agreement and any other terms and conditions accompanying each Application, Onward will permit You to download and install Applications and operate those Applications solely for the purpose of using and accessing the Platform, Content, and Services as intended. You may install each Application only on computers, mobile devices, or smart phones owned or controlled by You and used only for Your own personal and non-commercial purposes in accordance with this Agreement and any applicable terms and conditions accompanying the Application or otherwise provided to You by Onward. Except as expressly set forth in the previous sentence, You are granted no licenses or other rights in or to any Application. You agree not to use, modify, reproduce, perform, display, create derivative works from, republish, post, transmit, participate in the transfer or sale of, distribute, or in any way exploit or utilize any Application other than as expressly permitted in this Agreement or any other agreement You are required to agree to before being given access to any Application.
- To Other Users. The Platform may allow You to link, connect, or otherwise communicate with other Users through the Platform. By linking, connecting, or communicating with other Users, You are agreeing to allow those Users to communicate directly with You through the Platform. You agree that You are solely responsible for all communications between You and any other User through the Platform. Your extension or acceptance of a link, connection, or other communication with another User will serve as Your affirmative "opt in" to the disclosure of any of Your User Content or other data or information (which may include Your personal information) that You provide to that other User.
- To Third Party Services. The Platform may require access to or provide You with the choice to access certain Services developed, provided, or maintained by other third party service providers ("Third Party Services"). You hereby authorize Onward to share Your User Content with Third Party Service providers. In addition to the terms of this Agreement, Your access to and use of any Third Party Services is also subject to any other agreement You may agree to before being given access to the Third Party Services (each, a "Third Party Service Agreement"). The terms of any Third Party Service Agreement (which may include payment of additional fees) will apply to the applicable Third Party Services provided under that Third Party Service Agreement in addition to the terms of this Agreement, but will not apply to any other Services You may access through Onward. Except as set forth in this Agreement, the terms of any Third Party Service Agreement will control in the event of a conflict between the terms of this Agreement and that Third Party Service Agreement.
APP STORE. The Application may be obtained through a third party distribution platform (e.g., the Apple App Store or Google Play App Store) (the "App Store") and is to be used solely on a mobile device owned or controlled by You that operates such third party's operating system. This Agreement incorporates by reference the terms of the Addendum to this Agreement and any other terms available at the respective App Store from which You have obtained the Application. You agree that this Agreement is between You and Onward, and not with the App Store. The App Store is not responsible for the Application, maintenance and support services or any warranty thereof, or addressing any claims related thereto. You agree to pay all fees charged by the App Store in connection with the Application (if any). The Application may also be subject to additional terms and conditions and privacy policies, and Onward is not a party to nor responsible for those additional terms.
- Purchases. In addition to the Content and Services available for no charge through the Platform, You may be offered the opportunity to purchase, subscribe to, or otherwise obtain access to premium Content or Services, or other products or services through the Platform from Onward, or Your use of the Services may result in charges to You for services or products from other Users ("Charges"). Onward will facilitate Your payment of the applicable Charges on its own behalf, and on behalf of any other User of the Platform as such User's limited payment collection agent. Payment of any Charges to any other User of the Platform shall be considered the same as payment made directly by You to such User. Charges will be inclusive of applicable taxes where required by law. Any purchase will be subject to any terms and conditions displayed on or through the Platform in connection with the purchase in addition to the terms of this Agreement. Unless otherwise indicated on the Platform, purchases made by You through the Platform cannot be exchanged and any Charges in connection with those purchases are non-refundable. All information that You provide in connection with a purchase or other transaction through the Platform will be accurate, complete, and current. You authorize Onward (or a company chosen to act on behalf of Onward) to process the credit card, debit card, mobile services account, or other payment method linked to Your User Account provided in connection with any transaction made through Your User Account, and agree to honor all purchases incurred in connection with any such transaction. With regard to Drivers, You understand that this payment structure is intended to fully compensate Drivers for Charges related to their services. While You are free to provide additional payment as a gratuity to Drivers, gratuities are voluntary, and You are under no obligation to do so.
- Promotions. From time to time, Onward may offer Users special free trials, promotional codes, credits, awards, or other discounts ("Promotions"). All Promotions will be offered at the sole discretion of Onward, and can be modified or terminated at any time by Onward with or without advance notice. Promotions may be offered on a limited time basis and may be subject to certain restrictions. As part of a Promotion, Onward may offer credits to Charges that are non-transferrable, nonrefundable for cash, and may be subject to additional terms and conditions.
- Payment Processor. Onward may use a payment processor, such as Stripe, to process Charges that Users accept under this Agreement. In order for Users to utilize the payment processing service, they must enter into any such agreement that the payment processor requires. By making purchases linked Your User Account, You agree that You have reviewed and agreed to any such agreements required.
TERMINATION. This Agreement may be terminated by either party at any time, in that party's sole discretion, upon notice to the other party as permitted under this Agreement. Upon termination or expiration of this Agreement for any reason: (a) all rights and licenses granted to You under this Agreement will terminate; (b) You will immediately cease all use of and access to the Platform and all Content and Services (including, without limitation, all Content You obtained prior to termination or expiration); (c) You will immediately delete any Applications You have downloaded or installed prior to termination or expiration; and (4) Onward may, in its sole discretion, delete Your User Account and any of Your User Content held by Onward. Sections 1 (Definitions); 4.2 (Notice to Riders); 5.2 (Notice to Drivers); 7 (Content); 9 (Your Services); 11 (Payment); 14 (Platform Technology); 15 (Ownership); 17 (Representations and Warranties); 18 (Indemnity); 19 (Limitation on Liability); 20 (Data Privacy); 22 (Mandatory Dispute Resolution/Class-Arbitration Waiver); 23 (Governing Law); 24 (Notices); and 26 (Additional Terms) will survive any expiration or termination of this Agreement.
SUSPENSION. Without limiting Onward's right to terminate this Agreement, Onward may also suspend Your access to Your User Account and the Platform or any Content or Services (including Your User Content), with or without notice to You, upon any actual, threatened or suspected breach of this Agreement or applicable Law or upon any other conduct deemed by Onward, in its sole discretion, to be inappropriate or detrimental to the Platform, Services, Onward, or any other User or third party.
PLATFORM TECHNOLOGY. The Platform, and the databases, software, hardware and other technology used by or on behalf of Onward to operate the Platform, and the structure, organization, and underlying data, information and software code thereof (collectively, the "Technology"), constitute valuable trade secrets of Onward. You will not, and will not permit any third party to: (a) access or attempt to access the Technology except as expressly provided in this Agreement; (b) use the Technology in any unlawful manner or in any other manner that could damage, disable, overburden or impair the Technology; (c) upload, transmit, or distribute any computer viruses, worms, or any software intended to damage or alter the Technology; (d) harvest, collect, gather, or assemble information or data regarding other Users, including e-mail addresses, without their consent; (e) alter, modify, reproduce, create derivative works of the Technology; (f) alter, obscure or remove any copyright, trademark, or any other notices that are provided on or in connection with the Technology; (g) distribute, sell, resell, lend, loan, lease, license, sublicense, or transfer any of Your rights to access or use the Technology, or otherwise make the Technology available to any third party; (h) reverse engineer, disassemble, decompile, or otherwise attempt to derive the method of operation of the Technology; (i) attempt to circumvent or overcome any technological protection measures intended to restrict access to any portion of the Technology; (j) interfere with the operation or hosting of the Technology; or (k) introduce software or automated agents or scripts to the Technology so as to produce multiple accounts, generate automated searches, requests and queries, or to strip, scrape, deep link, or mine Content from the Technology (except that Onward grants the operators of public search engines revocable permission to use spiders to copy materials for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials).
OWNERSHIP. Onward retains all right, title and interest, including, without limitation, all IPR, in and to the Technology and any additions, improvements, updates and modifications thereto. You receive no ownership interest in or to the Technology and You are not granted any right or license to use the Technology itself, apart from Your ability to access the Platform, Content, and Services under this Agreement. The Onward name, logo, and all product and service names associated with the Platform, Content, and Services are trademarks of Onward and its licensors and providers and You are granted no right or license to use them.
ONWARD COVERAGE FOR DAMAGE OR THEFT. If You suffer bodily injury or a loss, defined as damage or theft to Your personal property, directly as a result of the actions of an Onward Driver hired through the Onward Application, Onward will provide payment for the bodily injury or loss up to $5,000 subject to the terms herein. The Onward coverage pays only to the extent that damages still remain after You have provided Onward with timely notice and documented evidence that You (i) first made a claim to the Driver and have exhausted all of the Driver's insurance limits, and (ii) exhausted Your insurance policy or Your claim is excluded from such coverage.
REPRESENTATIONS AND WARRANTIES.
- Mutual. Each party hereby represents and warrants to the other party that: (a) it has the legal right and authority to enter into this Agreement; (b) this Agreement forms a binding legal obligation on behalf of such party; and (c) it has the legal right and authority to perform its obligations under this Agreement and to grant the rights and licenses described in this Agreement.
- Compliance with Laws; Prohibition against Criminal Behavior. You acknowledge that the Platform is a general purpose online service and is not specifically designed to facilitate compliance with any specific Law. You acknowledge that You will access and use the Platform in compliance with all Laws applicable to You, Your User Content and any other Content You may access through the Platform. Onward is not responsible for notifying You of any such Law, enabling Your compliance with any such Law, or for Your failure to comply. You represent and warrant to Onward that Your User Content, Your Services, and Your use of and access to the Platform, including any Content, will comply with all applicable Laws and will not cause Onward itself or any other User to violate any applicable Laws. By accessing and using the Platform, You represent and warrant that You have never been: (a) the subject of a complaint, restraining order or any other legal action including, without limitation, arrested for, charged with, or convicted of any felony, any criminal offense involving violence, abuse, neglect, fraud or larceny, or any offense that involves endangering the safety of others, dishonesty, negligence or drugs; or (b) registered, or currently required to register, as a sex offender with any government entity.
- No Warranties; Disclaimer. THE PLATFORM, CONTENT, AND SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE." ONWARD AND ITS PROVIDERS DO NOT WARRANT OR GUARANTEE THE ACCURACY, COMPLETENESS, OR ADEQUACY OF THE PLATFORM OR ANY CONTENT OR SERVICES AND DO NOT ENDORSE THE VIEWS OR OPINIONS THAT MAY BE EXPRESSED IN THE CONTENT OR OTHER DATA, INFORMATION OR USER CONTENT THAT MAY BE PROVIDED THROUGH THE PLATFORM. ONWARD AND ITS PROVIDERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND WITH REGARD TO THE PLATFORM, CONTENT, SERVICES AND OTHER SUBJECT MATTER OF THIS AGREEMENT, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE, OR NON-INFRINGEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ONWARD, ITS EMPLOYEES, OR PROVIDERS WILL INCREASE THE SCOPE OF, OR CREATE ANY NEW WARRANTIES IN ADDITION TO, THE WARRANTIES EXPRESSLY SET FORTH IN THIS SECTION 17. YOU RECOGNIZE THAT THE PLATFORM AND ALL SERVICES AND CONTENT PROVIDED THROUGH THE PLATFORM ARE NOT INTENDED TO REPLACE YOUR PRIMARY COMMUNICATIONS SYSTEMS. THE PLATFORM AND ALL SERVICES AND CONTENT PROVIDED THROUGH THE PLATFORM ARE NOT BUILT FOR ERROR-FREE ACCESS AND THAT INTERRUPTIONS, CRASHES, DOWNTIME, DELAYS AND LATENCY MAY OCCUR FROM TIME TO TIME. THE PLATFORM IS NOT FAULT TOLERANT AND IS NOT DESIGNED OR INTENDED FOR USE FOR OR WITH REAL TIME ROUTE GUIDANCE (INCLUDING WITHOUT LIMITATION, TURN-BY-TURN ROUTE GUIDANCE AND OTHER ROUTING THAT IS ENABLED THROUGH THE USE OF A GPS OR OTHER SENSOR) OR FOR OR IN CONNECTION WITH ANY SYSTEMS OF FUNCTIONS FOR AUTOMATIC OR AUTONOMOUS CONTROL OF VEHICLE BEHAVIOR, WHERE THE FAILURE OF THE PLATFORM COULD LEAD TO DEATH, PERSONAL INJURY, OR ENVIRONMENTAL DAMAGE.
INDEMNITY. You hereby agree to indemnify, defend, and hold harmless Onward and its officers, directors, shareholders, affiliates, employees, agents, contractors, assigns, users, customers, providers, licensees, and successors in interest ("Indemnified Parties") from any and all claims, losses, liabilities, damages, fees, expenses and costs (including attorneys' fees, court costs, damage awards, and settlement amounts) that result from any claim or allegation ("Claim") against any Indemnified Party arising in any manner from: (a) Your access to or use of the Platform, Content, or Services; (b) Your unauthorized use of the Onward Technology; (c) Your User Content or any access to or use thereof; (d) Your Services or any access to or use thereof; (e) any access to or use of Your User Content or Your Services by any Users; (f) Your collection, use, and disclosure of any User Content, (g) Your violation of applicable Laws; and (h) Your breach of any representation, warranty, or other provision of this Agreement. Onward will use reasonable efforts to provide You with notice of any such claim or allegation, and Onward will have the right to participate in the defense of any such claim at its expense.
LIMITATION ON LIABILITY. ONWARD WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL OR PUNITIVE DAMAGES, HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE), ARISING IN CONNECTION WITH OR OUT OF THE USE OF THE PLATFORM, CONTENT, OR SERVICES, EVEN IF ONWARD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF YOUR USER CONTENT, OPPORTUNITY, REVENUES, PROFITS OR REPUTATION, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE CONTENT, GOODS OR SERVICES. ONWARD'S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT AND ALL CONTENT AND SERVICES PROVIDED UNDER THIS AGREEMENT OR THROUGH THE PLATFORM, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED $1,000 OR, IN THE CASE OF ANY PURCHASES YOU MAKE FROM ONWARD THROUGH THE PLATFORM, THE AMOUNTS PAID BY YOU TO ONWARD FOR THOSE PURCHASES. YOU AGREE THAT ONWARD WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY. IN JURISDICTIONS WHERE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES IS NOT PERMITTED, ONWARD'S LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
CLAIMS OF INFRINGEMENT. Onward respects Your copyrights and other intellectual property rights and those of other third parties. If You believe in good faith that Your copyrighted work has been reproduced on the Platform without Your authorization in a way that constitutes copyright infringement, You may notify our Onward by send an e-mail to firstname.lastname@example.org. When contacting Onward, please provide the following information: (a) the identity of the infringed work, and of the allegedly infringing work; (b) Your name, address, daytime phone number, and email address, if available; (c) a statement that You have a good-faith belief that the use of the copyrighted work is not authorized by the owner, his or her agent, or the law; (d) a statement that the information in the notification is accurate and, under penalty of perjury, that You are authorized to act on behalf of the owner; and (e) Your electronic or physical signature. Onward will take whatever action, in its sole discretion, it deems appropriate, including the removing the allegedly infringing work from the Platform.
**MANDATORY DISPUTE RESOLUTION/CLASS-ARBITRATION WAIVER. ** BY ENTERING THIS AGREEMENT, YOU AND ONWARD AGREE TO ARBITRATE ANY AND ALL CLAIMS, CONTROVERSIES OR DISPUTES OF ANY KIND AGAINST EACH OTHER. YOU AND ONWARD WAIVE THE RIGHT TO A TRIAL BY JURY AND ALSO WAIVE THE RIGHT TO PARTICIPATE IN A CLASS ACTION. ACCORDINGLY, YOU AND ONWARD AGREE THAT NEITHER ONWARD NOR YOU WILL JOIN ANY CLAIM WITH THE CLAIM(S) OF ANY OTHER PERSON OR ENTITY WHETHER IN A LAWSUIT, ARBITRATION, OR ANY OTHER PROCEEDING. YOU AND ONWARD AGREE THAT NO CLAIMS WILL BE ASSERTED IN ANY REPRESENTATIVE CAPACITY ON BEHALF OF ANYONE ELSE, THAT NO CLAIMS WILL BE RESOLVED ON A CLASS-WIDE OR COLLECTIVE BASIS, THAT NO ARBITRATOR OR ARBITRATION FORUM WILL HAVE JURISDICTION TO ADJUDICATE ANY CLAIMS ON A CLASS-WIDE OR COLLECTIVE BASIS, AND THAT NO RULES FOR CLASS-WIDE OR COLLECTIVE ARBITRATION WILL APPLY. THUS YOU AND ONWARD MAY ONLY BRING CLAIMS AGAINST ONE ANOTHER IN AN INDIVIDUAL CAPACITY, NOT AS A NAMED PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE CAPACITY. This agreement to arbitrate is intended to be broadly interpreted and applies to all claims regardless of whether they are based on conduct that occurred prior to, during or after the term of the Agreement and regardless of whether the claims are based in contract, tort, statute, fraud, misrepresentation or any other legal theory. References to the terms "Onward" "You," "Your," "Party," or "Parties" include all respective subsidiaries, affiliates, agents, employees, predecessors in interest, successors and assigns. This arbitration provision survives termination of this Agreement. The sole exception to this arbitration agreement is that either You or Onward may, in the alternative, bring claims in a small claims court having competent jurisdiction.
- Arbitration Procedure. A party who intends to seek arbitration must first send to the other party, by certified mail, a written Notice of Dispute ("Notice"). The Notice to Onward should be addressed to: Onward Management Team. The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought. If Onward and You do not reach an agreement to resolve the claim within 30 days after the Notice is received, You or Onward may commence an arbitration proceeding pursuant to the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively "AAA Rules") of the American Arbitration Association ("AAA"), as modified by this Agreement. A single neutral arbitrator will be selected by agreement of the parties. If an agreement cannot be reached, a single neutral arbitrator will be selected according to the AAA's procedures and the Federal Arbitration Act, 9 U.S.C. §§ 1-16 ("FAA"), and the claims will be resolved pursuant to this Mandatory Dispute Resolution/Class-Arbitration Waiver provision and the AAA Rules in effect when the claim is filed. The AAA Rules are available online at www.adr.org/consumer_arbitration and can also be obtained by calling the AAA at 1-800-778-7879. AAA will administer the arbitration, and You may file a demand for arbitration at www.adr.org. Unless Onward and You agree otherwise, any in-person arbitration hearings will occur within 100 miles of Your address, with the preference that it occur in the county/parish of Your address. If a claim is for $10,000 or less, the party submitting the claim may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator ("desk arbitration"), through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. The arbitrator conducting a desk arbitration or telephonic hearing may be located anywhere in the United States. If a claim exceeds $10,000, the AAA Rules govern where a hearing occurs. The arbitration will be confidential, but either party may notify any governmental authority of the claim.
- Arbitrator's Authority. The arbitrator is bound by the terms of this Agreement, and the arbitrator's authority is limited to claims between You and Onward. The arbitrator has no authority to join or consolidate claims unless the parties agree otherwise in writing. The arbitrator, not any court or agency, has exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability, or formation of this Agreement including, but not limited to, any claim that all or any part of this Agreement is void or voidable. The arbitrator may award all relief or remedies available in court, including declaratory and injunctive relief, but only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that individual's claim.
- Costs of Arbitration. Except as otherwise provided for herein, Onward will: (a) pay all AAA filing, administration and arbitrator fees for any arbitration initiated in accordance with this arbitration provision; and (b) will not seek an award of its attorney's fees. If the arbitrator finds that the substance of the claim or the relief sought is frivolous, however, then the AAA Rules will govern the payment of all fees, and Onward may seek an award of its reasonable attorney's fees. Furthermore, if You initiate an arbitration seeking more than $75,000 in damages, the AAA Rules govern the payment of all fees. You are responsible for all additional costs that You incur in the arbitration, including but not limited to, fees for attorneys or expert witnesses. Notwithstanding anything to the contrary in this provision, Onward will pay all fees and costs that it is required to pay under the law.
- Changes. Notwithstanding any provision in this Agreement to the contrary, You agree that if Onward makes any future change to this Dispute Resolution Provision (other than a change to the Notice address listed above) during the term of this Agreement, You may reject any such change by sending Onward written notice within 30 days of the change to the Notice address provided above. By rejecting any future change, You are agreeing that You will arbitrate any dispute between us in accordance with the language of this provision. Changes made to this provision after either party has submitted a Notice will not affect the pending dispute.
- Governing Law, Enforcement, and Waivers. The Federal Arbitration Act, and not state law, applies to this Mandatory Dispute Resolution/Class-Arbitration Waiver provision and governs all questions of whether a claim is subject to arbitration. If any portion of the Mandatory Dispute Resolution/Class-Arbitration Waiver provision is determined to be invalid or unenforceable, the remainder of the provision remains in full force and effect.
GOVERNING LAW. The interpretation of the rights and obligations of the parties under this Agreement, and any negotiations, arbitrations, or other legal proceedings hereunder, will be governed in all respects exclusively by the laws of the State of California, U.S.A. Subject to Section 22 (MANDATORY DISPUTE RESOLUTION/CLASS-ARBITRATION WAIVER), each party agrees that it will bring any action or proceeding arising from or relating to this Agreement exclusively in a federal or state court in San Francisco, California. You irrevocably submit to the personal jurisdiction and venue of any such court in any such action or proceeding or in any action or proceeding brought in such courts by Onward.
NOTICES. Unless otherwise specified in this Agreement, any notices required or allowed under this Agreement will be provided to Onward by postal mail to the address for Onward listed on the Platform. Onward may provide You with any notices required or allowed under this Agreement by sending You an email to any email address You provide to Onward in connection with Your User Account, provided that in the case of any notice applicable both to You and other Users of the Platform, Onward may instead provide such notice by posting on the Platform. Notices provided to Onward will be deemed given when actually received by Onward. Notice provided to You will be deemed given 24 hours after posting to the Platform or sending via e-mail, unless (as to e-mail) the sending party is notified that the e-mail address is invalid.
LINKED SITES. The Platform, Content, or Services may contain links to third party sites or content that are not under the control of Onward. If You access a third-party site or content from the Platform or Services, then You do so at Your own risk and Onward is not responsible for any content on any linked site. You may establish a link to the Site, provided that the link does not state or imply any sponsorship or endorsement of Your site by Onward or any group or individual affiliated with Onward. You may not use on Your site any Content or marks appearing on the Site or Platform in establishing the link. You may not frame or otherwise incorporate into another site the content or other materials on the Platform without prior written consent.
ADDITIONAL TERMS. Unless otherwise amended as provided herein, this Agreement will exclusively govern Your access to and use of the Platform, Content, and Services, and is the complete and exclusive understanding and agreement between the parties, and supersedes any oral or written proposal, agreement, or other communication between the parties, regarding Your access to and use of the Platform, Content, and Services. Except as expressly set forth in this Agreement, this Agreement may be amended or modified only by a writing signed by both parties. All waivers by Onward under this Agreement must be in writing or later acknowledged by Onward in writing. Any waiver or failure by Onward to enforce any provision of this Agreement on one occasion will not be deemed a waiver by Onward of any other provision or of such provision on any other occasion. If any provision of this Agreement is held to be unenforceable, that provision will be removed to the extent necessary to comply with the law, replaced by a provision that most closely approximates the original intent and economic effect of the original to the extent consistent with the law, and the remaining provisions will remain in full force. The prevailing party in any lawsuit or proceeding arising from or related to this Agreement will be entitled to receive its costs, expert witness fees and reasonable attorneys' fees, including costs and fees on appeal. Neither this Agreement nor any rights or obligations of You hereunder may be assigned or transferred by You (in whole or in part and including by sale, merger, consolidation, or other operation of law) without the prior written approval of Onward. Any assignment in violation of the foregoing will be null and void. Onward may assign this Agreement to any party that assumes Onward's obligations hereunder. The parties hereto are independent parties, not agents, employees or employers of the other or joint venturers, and neither acquires hereunder any right or ability to bind or enter into any obligation on behalf of the other. Any reference herein to "including" will mean "including, without limitation." Upon request from Onward, You agree to provide Onward with such documentation or records with respect to Your activities under this Agreement as may be reasonably requested for Onward to verify Your compliance with the terms of this Agreement and all applicable Laws.
Supplemental Terms for Apple
Notwithstanding anything set forth above, if You obtained a license to the Application through the Apple App Store, the following additional terms and conditions apply.
- Acknowledgement : You acknowledge that this Agreement is between You and Onward, not Apple, and Onward, not Apple, is solely responsible for the Application and the content thereof.
- Scope of License : For the avoidance of doubt, the license granted herein is solely for Your use on any Apple-branded products that You own or control as permitted by this Agreement and the Usage Rules set forth in the App Store Terms of Service.
- Maintenance and Support : You acknowledge that Apple will not have any obligation whatsoever to provide any maintenance or support with respect to the Application.
- Warranty : You agree that Onward shall be solely responsible for any product warranties, whether express or implied by law, to the extent not effectively disclaimed in this Agreement. In the event of any failure of the Application to conform to any applicable warranty, You have the right to notify Apple and Apple shall refund the purchase price for the Application to You. You acknowledge that, to the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to the Application and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Onward, to the extent applicable.
- Product Claims : Both parties hereto agree that Onward, not Apple, is responsible for addressing any claims made by You or any third party relating to the Application or Your possession and/or use of the Application, including, but not limited to: (i) product liability claims; (ii) any claim that the Application fails to conform to any applicable legal or regulatory requirement, and (iii) claims arising under consumer protection or similar legislation.
- Intellectual Property Rights : Both parties hereto acknowledge that in the event of any third party claim that the Application or Your possession and use of the Application infringes such third party's intellectual property rights, Onward, not Apple, will solely be responsible for the investigation, defense, settlement, and discharge of any such intellectual property infringement claim.
- Legal Compliance : You represent and warrant that: (i) You are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country, and (ii) You are not listed on a U.S. Government list of prohibited or restricted parties.
- Developer Name and Address : Onward's contact information for any questions, complaints, or claims with respect to the Application is set forth in this Agreement.
- Third Party Terms of Agreement : You must comply with all applicable third party terms of agreement when using the Application, e.g., You must not be in violation of Your wireless data service when using the Application.
- Third Party Beneficiary : Both parties acknowledge and agree that Apple and its subsidiaries are third party beneficiaries of this Agreement, and that, upon Your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against You as a third party beneficiary hereof.
- Apple Minimum Terms Control : You acknowledge and agree that if any of the terms and conditions of this Agreement are inconsistent or in conflict with Apple's applicable Instructions for Minimum Terms for Developer's End User License Agreement, the terms and conditions of Apple's Instructions for Minimum Terms of Developer's End User License Agreement shall apply.