TERMS OF SERVICE
LAST UPDATED: March 16, 2018
BEFORE YOU CLICK ON THE “I AGREE” BUTTON BELOW, CAREFULLY READ THESE TERMS OF SERVICE. BY CLICKING ON THE “I AGREE” BUTTON YOU ARE REPRESENTING THAT (1) YOU ARE OF THE LEGAL AGE TO FORM A LEGALLY BINDING CONTRACT BETWEEN CURB MOBILITY, LLC (“CML”) AND YOU IN THE JURISDICTION WHERE YOU PERMANENTLY RESIDE; (2) YOU HAVE READ AND UNDERSTAND THESE TERMS OF SERVICE; AND (3) YOU ARE CONSENTING TO BE BOUND BY AND BECOME A PARTY TO THESE TERMS OF SERVICE, WHICH IS A BINDING LEGAL AGREEMENT. IF YOU ARE ACCEPTING THESE TERMS OF SERVICE ON BEHALF OF ANOTHER PERSON OR A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO BIND THAT PERSON, COMPANY, OR OTHER LEGAL ENTITY TO THESE TERMS OF SERVICE, AND THAT BY YOUR CLICKING OF THE “I AGREE” BUTTON SUCH PERSON, COMPANY OR OTHER LEGAL ENTITY IS HEREBY BOUND. IF YOU DO NOT AGREE TO ALL OF THESE TERMS OF SERVICE, CLICK THE “I DISAGREE” BUTTON AND THE PROCESS WILL BE CANCELED AND THE SERVICE (AS DEFINED BELOW) WILL NOT BE AVAILABLE FOR YOUR USE.
By the earliest to occur of your (1) clicking the “I Agree” button located at the bottom of these Terms of Service or (ii) using the Service (as defined below) (including any revisions, updates, upgrades, modifications, enhancements or new releases thereto), you accept and agree to be bound by these Terms of Service. By entering into these Terms of Service, you are also consenting (1) to the collection and handling of information described in the Curb Privacy Notice, and (2) to your receipt of text messages and emails in connection with the Service at the telephone number and email address you provide during registration, including, without limitation, the initial message containing a registration code, any text messages or emails containing receipts (if we provide such functionality and you request them) and confirmation messages sent in response to any opt-out request you may make; provided that, if you update such initial telephone number and/or email address in your account settings, then such text messages will be thereafter sent to such updated telephone number and/or email address.
These Terms of Service is an ongoing contract between you and CML and applies to your use of the Service as made available in the United States. You agree not to use or attempt to use the Service from outside of the United States. Different terms, conditions and limitations may apply to the Service available in other jurisdictions.
Changes to Terms of Service
CML reserves the right, from time to time, with or without notice, to change these Terms of Service in its sole and absolute discretion. All changes to these Terms of Service will be effective and binding upon you once they are displayed or posted in accordance with this paragraph. You acknowledge and agree that it is your responsibility to ensure that you are aware of the most current Terms of Service. If any substantial changes are made to these Terms of Service, CML will notify you by displaying the new Terms of Service within the Application or by posting them on the Website (as defined below). The most current version of these Terms of Service can be viewed at all times by visiting https://mobileapp.gocurb.com/terms/. The most current version of these Terms of Service will supersede all previous versions. If you do not agree to any change to these Terms of Service, you must immediately cease using the Service and delete the Application from your device(s).
Description of Service
CML’s Curb is a technology platform that may be accessed via by authorized users via mobile applications (the “Applications”), certain text-based messaging protocols (“Text Services”), and CML- authorized web interfaces or websites (“Websites” and, together with Applications and Text Services, “Channels”)), including http://gocurb.com, and enables such users in certain locations in the United States to, among other things, locate, hail, book and hire taxicabs and/or other for-hire vehicles (any such taxi or other for-hire vehicle, a “Taxi”), pay for a Taxi ride, and track certain Taxi rides and related expenses through a supported computing device (together with the Channels, the “Service”). Using certain Channels, you can store your payment information, set your tip preferences, and view all of your past trips and receipts.
CML is not an issuer, financial institution or money transmission business. Further, CML is not a provider of transportation services and does not own or operate any Taxis and does not have any control over the Taxi owners, managers, drivers and/or operators. CML, through the Service, only provides a platform to (1) obtain certain third party transportation services and (2) facilitate payment of fares for certain third party transportation services.
In order to use the Service, you must first create and register an account on the Curb platform (“Account”) either via an Application, a Website or another CML-provided means. By registering an Account, you represent and warrant that you are capable of entering into a legally binding agreement and that all information submitted by you during such registration or otherwise via the Application, Website or other means is truthful, complete and accurate. As part of the registration process, you will be required to: (1) associate an email address with your Account (that will become your username) and establish a password for your Account; (2) associate a phone number with your Account that is capable of receiving text messages; and (3) submit one or more valid credit cards to be used in processing payment transactions for the Taxi rides you hail, book, hire, arrange and/or pay for through the Service. For each credit card, debit card or other accepted payment card that you register on your Account, you authorize CML to confirm that such credit card is in good standing with the issuer, which may include submitting a request for a payment authorization and/or a low dollar amount credit to your card in accordance with the applicable card network rules.
You are solely responsible for maintaining the confidentiality and security of your Account password and for all activities that occur on or through your Account, and you agree to immediately notify CML if you suspect any unauthorized use of your Account or access to your password. CML shall not be responsible for any losses arising out of the unauthorized use of your Account.
Further, you are responsible for providing and maintaining current, truthful, complete and accurate information for your Account for so long as you continue to use the Service. CML may, from time to time, require you to provide additional information in evaluating your registration, Account and eligibility to continue using the Service. CML reserves the right, in its sole and absolute discretion, to reject, suspend or terminate your Account (with or without notice), except as otherwise required by Applicable Laws (as defined below).
Processing Payments for the Service and Taxi rides
When you hail, book, hire, arrange and/or pay for a Taxi ride via the Service, you are deemed to have accepted the service provided by CML through the Service and agree to pay the corresponding fees or charges (see Service Fees, below). Upon requesting a Taxi ride via the Service, we may pre-authorize one of the payment cards you have associated with your account in an amount that provides reasonable assurance of your ability to pay the fare and related fees or charges for the requested Taxi ride. When you enter a Taxi and direct the Taxi driver or operator to a destination, you are deemed to have accepted such third party transportation services and agree to pay the corresponding fare and related fees or charges (e.g., tolls, sales tax, regulatory surcharges, etc.). Such amounts (and applicable Services Fees) will be charged to one of the payment cards you have associated with your account, and you hereby authorize any such charge. Any payments made in connection with the Taxi rides you hire, book, arrange and/or pay for through the Service are non-refundable by CML; however, you may have additional refund or charge-back rights under the card agreement with your card issuer. You should consult the terms and conditions governing your payment card for more information.
Your Use of the Service
Your use of the Service is for your sole, personal use. The Service is limited to facilitating hailing, booking and hiring of, and payments for, Taxi rides in certain locations in the United States, and may not be used to send cash advances, cash equivalents, or otherwise transfer money between you and a third party.
By accessing the Service (including via any Channel), you agree to use the Service (including, without limitation, all features and functionalities associated therewith, any Channel, and software associated therewith) in accordance with these Terms of Service and all applicable laws, statutes, rules and regulations (“Applicable Laws”). In addition, you agree that you will: (1) use the Service only for lawful purposes; (2) not upload, post, e-mail or otherwise send or transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of the Service or any computer software or hardware or telecommunications equipment associated with the Service; (3) not impersonate any person or entity or otherwise misrepresent your affiliation with any person or entity, including, without limitation, any person or entity affiliated with the Service; (4) not interfere with the servers or networks connected to any portions of the Service or violate any of the procedures, policies or regulations of networks connected to the Service; and (5) not impair or harm the Service (including, without limitation, any Channel) in any way whatsoever.
Communications from CML
You agree and consent to receive electronically all communications, agreements, documents, notices, statements and disclosures (collectively, “Communications”) that CML provides in connection with your Account and your use of the Service. Communications will be delivered by (a) posting a notice or message through the Channels; or (b) sending electronic mail to the email address associated with your Account. All Communications will be considered received by you within 24 hours of the time such Communication is posted to any Channel or emailed to you. You also agree that your electronic signature on any agreements or documents in connection with the Service has the same effect as a physical signature.
Service Fee. For each Taxi ride that you originate via the Service by making a request for ground transportation via the Service, you may be charged a base service fee of up to two dollars ($2.00). For any base service fee assessed in accordance with this paragraph, you agree to pay such amount to CML and authorize CML to charge such amount to a payment card associated with your Account.
Reservation Fee. Through the Service, you may have the option of scheduling a Taxi ride up to forty-eight (48) hours ahead of time (a “Scheduled Booking”). For each Scheduled Booking that results in a Taxi Ride, you may be charged an additional Reservation Fee of up to three dollars ($3.00). For any Reservation Fee assessed in accordance with this paragraph, you agree to pay such amount to CML and authorize CML to charge such amount to a payment card associated with your Account. For the avoidance of doubt, the Reservation Fee is not applicable to a request to hail a Taxi via the service (i.e., a request for immediate ground transportation). Further, you acknowledge and agree that a Scheduled Booking is not guaranteed to result in a Taxi ride and that CML makes no representation or warranty that a third party provider of ground transportation will be willing or available to provide you with ground transportation services at the time of your Scheduled Booking.
Cancellation Fee. If, after requesting a Taxi via the Service, you cancel that request two (2) minutes or more after such request has been accepted by a Taxi operator, or, after making a Scheduled Booking, you cancel the Scheduled Booking less than sixty (60) minutes before the scheduled pick-up time, then you may be charged a cancellation fee of up to ten dollars ($10.00). For any cancellation fee assessed in accordance with this paragraph, you agree to pay such amount to CML and authorize CML to charge such amount to a payment card associated with your Account.
No-Show Fee. If you request a Taxi via the Service and do not cancel such request, the Taxi operator that has accepted the request for ground transportation will wait at the designated pickup location for at least four (4) minutes. If you make a Scheduled Booking and do not cancel such Scheduled Booking, the Taxi operator that has accepted your request for ground transportation will arrive at the appointed pickup location within five (5) minutes of the scheduled pickup time and wait at least eight (8) minutes after the scheduled pickup time. If you fail to board the Taxi and hire it prior to the expiration of the applicable wait time, then you may be charged a no-show fee of up to ten dollars ($10.00). For any no-show fee assessed in accordance with this paragraph, you agree to pay such amount to CML and authorize CML to charge such amount to a payment card associated with your Account.
In order to subsidize the Service, CML may rely on advertising revenue. You consent to CML’s placement and display of advertisements, offers and promotions on your mobile device, your Account, the Website, the Application, your receipts (whether electronic or hard copy) and CML or third party equipment located in Taxis that are used in connection with the Service (including, without limitation, passenger information monitors located in the rear of a Taxi). These advertisements, offers and promotions may be personalized and targeted based on, among other things, your usage of the Service.
You agree that CML is not responsible for the content of these advertisements, offers and promotions (“Advertising Content”), and any activity (including the purchase of goods and/or services), as well as the accompanying terms and conditions, arising therefrom is strictly between you and the applicable third party. CML does not sponsor or endorse, and shall not be responsible for: (a) any Advertising Content; (b) any goods or services featured in any Advertising Content; or (c) any sites linked from such Advertising Content. CML expressly disclaims any and all liability for errors or omissions in any Advertising Content. You acknowledge that additional terms and conditions may apply to your use or acceptance of these advertisements, offers and promotions.
By using the Service, you consent to CML collecting and sharing information about you, your location (received through your computing device) and your use of the Service with CML’s third party partners. CML may also collect anonymized, aggregated data in connection with your use of the Service for purposes of marketing, data analytics and enhancing and optimizing the Service.
Limited License Grant. Subject to your compliance with these Terms of Service, CML grants you a non-exclusive, limited, personal, non-transferable, non-sublicensable, revocable license to (i) download and use the Applications (in object code form only) on one or more mobile computing devices solely in connection with your personal and non-commercial use of the Service; (ii) access and use the Websites (together with the Applications, the “Software”) solely in connection with your personal and non-commercial use of the Service; and (iii) view Advertising Content. This license grant includes the Software and all updates, upgrades, enhancements, modifications, new versions and replacement Software. The Software and Advertising Content may vary by device and medium, and functionalities may also vary by device and medium.
Restrictions. As a condition of the limited license granted to you hereunder, except as, and only to the extent, expressly permitted in these Terms of Service or by Applicable Laws that cannot be waived by you in these Terms of Service, you may NOT: (i) publish, display, disclose, rent, lease, loan, distribute, transmit, broadcast or otherwise exploit the Service, the Software, the Advertising Content, or any part thereof; (ii) modify or create derivative works based on the Service, the Software, the Advertising Content, or any part thereof; (iii) copy, decompile, reverse engineer, disassemble, translate, adapt or otherwise reduce the Software to human readable form; (iv) attempt to create the source code from the object code of the Software; (v) take any action that will infringe upon or misappropriate the intellectual property or other proprietary rights of CML or any of CML’s third party software providers; and/or (vi) sublicense or assign the Software or Advertising Content (collectively, the “Prohibited Acts”). You must comply with the implementation and use requirements contained in all documentation associated with the Software, and you will be liable for all resulting damages suffered by you, CML and third parties if you fail to comply.
Third Party Devices. CML does not warrant that the Software and/or Advertising Content will be compatible with third party software or hardware, nor does CML warrant that operation of the Service and associated Software will not damage or disrupt third party software or hardware. Your mobile device is manufactured and sold by entities other than CML and its affiliates, and CML does not take responsibility or otherwise warrant the performance of your mobile device, including the continuing compatibility of your mobile device with the Service. By using the Service, you agree to look solely to the entity that manufactured and/or sold your mobile device for any issues related to your mobile device and its compatibility with the Service.
Third Party Software. There are software programs contained within the Software that have been licensed to CML by third parties. The references to Software as used herein shall include such third party software except where the term Software refers expressly to the ownership or other specific rights of CML. The same terms and conditions, including all limitations and restrictions, set forth in these Terms of Service apply to each third party software program contained in the Software.
Exports. You may not use or otherwise export or re-export the Software except as authorized by United States law and any other Applicable Laws. In particular, but without limitation, the Software may not be exported or re-exported (a) into (or to a national or resident of) any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Departments list of Specially Designated Nationals or the U.S. Department of Commerce Denied Persons List or Entity List. By using the Software, you represent and warrant that you are not a citizen of or located in any such country or on any such list.
The Service (including, without limitation, the Software and Advertising Content) contains material that is protected by copyright and other applicable intellectual property laws in the United States and other territories and by international treaty provisions. The Service (including, without limitation, the Software and Advertising Content) is licensed to you by CML solely for use under the terms and conditions of these Terms of Service and all rights not specifically granted to you herein are reserved to CML (and to any third party with ownership rights in software used in the Service, Software and Advertising Content). You may not remove any proprietary notice of CML or any other party from any copy of the Software or Advertising Content. These Terms of Service do not grant you any rights to trademarks or service marks of CML.
CML may, from time to time in its sole discretion, release new versions, upgrades, enhancements or modifications of any Application. Any such updates will be electronically delivered to your mobile device, and you agree that the terms of these Terms of Service shall apply to all such updates. If you fail to install any such new versions, upgrades, enhancements or modifications, the Service may not function as intended.
CML Notifications Text Message Program
If you agree within the Channels, or by other means, to receive standard rate text messages from or with respect to the Service, you may receive an initial text message during the account registration process containing a confirmation code, and you may have the option to receive text messages from CML containing your receipts. Message and data rates may apply. Message frequency based upon use. To opt out (opt out will be confirmed via text message), Curb users should text STOP to 462872 (GOCURB). Text messaging is not available in all areas. Not all mobile devices may be supported. CML is not responsible for the successful delivery or any delays in your receipt of text messages. CML reserves the right to suspend or terminate this feature, in its sole and absolute discretion, at any time, with or without notice to you.
Use of Feedback
CML is free to use any comments, information, ideas, concepts, reviews, or techniques or any other material contained in any communication you may send to us (collectively, “Feedback“) through the Service (including, without limitation, via any Channel), without further compensation, acknowledgement or payment to you for any purpose whatsoever, including, but not limited to, developing, manufacturing and marketing products, and creating, modifying or improving the Service. Furthermore, by submitting any Feedback to CML, or in responding to questionnaires, you grant CML a perpetual, non-exclusive, royalty-free irrevocable license and right to display, use, reproduce or modify the Feedback submitted in any media, software or technology of any kind now existing or developed in the future.
Your Termination. You can terminate these Terms of Service by closing your Account at any time. Instructions for closing your Account are available on the Website.
CML’s Termination. CML reserves the right to terminate or restrict your use of the Service, without notice, for any or no reason whatsoever. CML can also terminate or suspend the Service and/or your access to the Service and/or your Account if you, as determined by CML in its sole discretion, (i) have breached any terms of these Terms of Service, (ii) pose an unacceptable fraud risk, (iii) provide CML with any false, incomplete or misleading information or engage in any fraud or illegal conduct, or (iv) for any other reason that CML determines violates Applicable Laws or CML’s policies.
Effect of Termination. Upon any termination, the license granted hereunder shall terminate and you shall immediately destroy any copies of the Software in your possession. Any provision that is reasonably necessary to accomplish or enforce the purpose of these Terms of Service will survive any termination of these Terms of Service or your use of the Service and remain in effect thereafter in accordance with their terms, including, without limitation, this Section (Effect of Termination) and those Sections entitled (i) Disclaimer of Warranties; (ii) Service Fees; (iii) Ownership; (iv) Limitation of Liabilities; (v) Indemnification; (vi) Governing Law, (vii) Arbitration; (viii) Miscellaneous; and (ix) Privacy.
Disclaimer of Warranties
THE SERVICE, INCLUDING EACH CHANNEL AND ALL SOFTWARE ASSOCIATED THEREWITH, OR ANY OTHER FEATURES OR FUNCTIONALITIES ASSOCIATED WITH THE SERVICE, ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND AND NONE OF THE CML INDEMNITEES (AS DEFINED BELOW) MAKE ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND WITH RESPECT TO THE SERVICE, EACH CHANNEL AND ANY SOFTWARE ASSOCIATED THEREWITH. CML DOES NOT GUARANTEE, REPRESENT OR WARRANT THAT YOUR USE OF THE SERVICE (INCLUDING USE OF ANY CHANNEL OR ANY SOFTWARE ASSOCIATED THEREWITH) OR FUNCTIONALITIES WILL BE UNINTERRUPTED OR ERROR-FREE AND YOU AGREE THAT CML MAY ELIMINATE OR OTHERWISE MODIFY ANY OR ALL ASPECTS OF THE SERVICE, INCLUDING FEATURES, WITHOUT COMPENSATION OR NOTICE TO YOU. CML SPECIFICALLY DISCLAIMS LIABILITY FOR THE USE OF MOBILE DEVICES, THIRD PARTY WEBSITES, LINKS OR CONTENT (INCLUDING, WITHOUT LIMITATION, ADVERTISING CONTENT), THE INTERNET, ANY TRANSPORTATION SERVICES USED BY YOU (INCLUDING THE TAXIS) AND CML SOFTWARE (INCLUDING THEIR CONTINUING COMPATIBILITY WITH THE SERVICE). TO THE EXTENT ALLOWABLE BY LAW, CML AND ITS LICENSORS DISCLAIM ALL REPRESENTATIONS AND WARRANTIES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN ADDITION, CML DOES NOT REPRESENT OR WARRANT THAT THE INFORMATION ACCESSIBLE VIA ANY CHANNEL OR OTHERWISE VIA THE SERVICE IS ACCURATE, COMPLETE OR CURRENT. CML DOES NOT REPRESENT OR GUARANTEE THAT YOUR USE OF THE SERVICE WILL BE FREE FROM INTERRUPTION, LOSS, CORRUPTION, ATTACK, VIRUSES, INTERFERENCE, HACKING OR OTHER SECURITY INTRUSION AND CML DISCLAIMS ANY AND ALL LIABILITY WITH RESPECT THERETO. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY CML OR ITS AUTHORIZED REPRESENTATIVE(S) SHALL CREATE A WARRANTY OR OTHERWISE CONSTITUTE A REPRESENTATION BINDING UPON CML OR ITS AFFILIATED PARTIES.
Limitation of Liabilities
IN NO EVENT SHALL CML, ITS AFFILIATES OR ANY OF CML’S OR ITS AFFILIATES SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, LICENSORS, AGENTS, REPRESENTATIVES OR ANY OF THE SUCCESSORS OR ASSIGNS OF ANY OF THE FOREGOING (COLLECTIVELY, THE “CML INDEMNITEES”) BE LIABLE (JOINTLY OR SEVERALLY) TO YOU OR ANY OTHER PARTY FOR PERSONAL INJURY OR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR ANY DAMAGES WHATSOEVER RESULTING FROM LOSS OF USE, DATA OR PROFITS, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSS, WHETHER OR NOT ADVISED OF THE POSSIBILITY OF DAMAGE, AND ON ANY THEORY OF LIABILITY, ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THE SERVICE, INCLUDING EACH CHANNEL AND ALL SOFTWARE ASSOCIATED THEREWITH, OR OTHERWISE RELATED TO THE SERVICE, CML SOFTWARE OR ANY OTHER FEATURES OR FUNCTIONALITIES ASSOCIATED WITH THE SERVICE. IN NO EVENT SHALL CML’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES FOR LOSSES ARISING FROM THE USE OR INABILITY TO USE THE SERVICE, INCLUDING EACH CHANNEL AND ALL SOFTWARE ASSOCIATED THEREWITH (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY) EXCEED THE AMOUNT OF FEES ACTUALLY RECEIVED BY CML FROM YOU IN CONNECTION WITH YOUR USE OF THE SERVICE DURING THE SIX-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT, ACT OR OMISSION UNDERLYING SUCH PURPORTED LIABILITY.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, NO ACTION, REGARDLESS OF FORM, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OF SERVICE OR YOUR USE OF THE SERVICE MAY BE BROUGHT BY YOU AGAINST CML OR ANY CML INDEMNITEE MORE THAN ONE (1) YEAR AFTER THE FIRST DAY THAT THE EVENT, ACT OR OMISSION GIVING RISE TO THE CAUSE OF ACTION OCCURRED. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
You agree to indemnify and hold the CML Indemnitees harmless from any and all Losses (as defined below) incurred by any of them and defend against any claim arising out of or in connection with: (i) your use of the Service, (ii) any violation or breach by you of these Terms of Service or any failure by you to comply with Applicable Laws, (iii) any dispute or litigation caused by your acts or omissions, (iv) any data, information or other content submitted by you, (v) the use of your Account, whether by your or a third party, (vi) any Transportation Disputes (as defined below), and (vii) the commission of any Prohibited Acts. CML reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify CML, including rights to settle, and you agree to cooperate with the defense and settlement of these claims. CML will use reasonable efforts to notify you of any claim, action or proceeding brought by a third party that is subject to the foregoing indemnification upon CML becoming aware of it.
For purposes of the preceding paragraph, “Losses” means judgments, settlements, awards, damages, losses, charges, liabilities, penalties, interest claims (including taxes and all related interest and penalties incurred directly with respect thereto), however described or denominated, and all related reasonable costs, expenses and other charges (including all reasonable attorneys fees and reasonable internal and external costs of investigations, litigation, hearings, proceedings, document and data productions and discovery, settlement, judgment, award, interest and penalties), however described or denominated.
Any disputes or complaints regarding any transportation services must be directed to the Taxi owner, dispatcher, manager, driver or operator providing such services (“Transportation Dispute”). CML will not be a party to any complaints, negotiations, litigation or other disputes between you and such third party Taxi owners/dispatchers/managers/drivers/operators regarding any Transportation Dispute. You agree to release the CML Indemnitees from and against any and all Losses arising out of a Transportation Dispute. Further, you agree that you will not involve any CML Indemnitee in any litigation or other dispute arising out of or related to any services, arrangement or other agreement with a Taxi owner, dispatcher, manager, driver or operator or other third party in connection with the Service, including, without limitation, any Transportation Dispute. If, in breach of this provision, you attempt to do so, you will be liable for all Losses incurred by the CML Indemnitees in connection therewith.
IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY EXPRESSLY WAIVE CALIFORNIA CIVIL CODE 1542, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF NOT KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
These Terms of Service shall for all purposes be governed by and interpreted in accordance with the laws of the State of New York as those laws are applied to contracts entered into and to be performed entirely in New York by New York residents, without giving effect to any choice-of-law provision or rule (whether of the New York or any other jurisdiction) that would cause the application of the laws of any other jurisdiction.
The parties to these Terms of Service shall use all reasonable efforts to resolve any disputes, controversies or differences arising out of or in connection with these Terms of Service or the Service amicably, including the use of a mutually agreeable, non-binding mediation procedure. Any such disputes, controversies or differences that are not settled by mutual agreement or mediation shall be finally and exclusively settled by confidential arbitration held in New York, New York and conducted by JAMS under its Streamlined Arbitration Rules. If $100,000 or less is at issue in the arbitration petition and/or response, then such arbitration shall be by one (1) independent arbitrator selected jointly by you and CML or appointed by JAMS, and that arbitrator shall not have the power to issue an award in excess of $100,000. If more than $100,000 is at issue in the arbitration petition and/or response, then such arbitration shall be by three (3) independent arbitrators, one chosen by you, one chosen by CML and the third chosen by the two arbitrators selected by the parties or appointed by JAMS. Once appointed pursuant to either procedure, the arbitrator or arbitral tribunal may order provisional or conservatory measures (including injunctive relief) at the request of a party and may embody such order in any final award. Nothing in the foregoing precludes, restricts or is intended to preclude or restrict the right of either party to seek injunctive or other equitable relief in an appropriate court of competent jurisdiction. English shall be the official language of the arbitration proceedings. Neither CML nor you will be entitled to join or consolidate claims in arbitration by or against other individuals or entities, or arbitrate any claim as a representative member of a class or in a private attorney general capacity. Accordingly, any JAMS Class Actions Procedures do not and shall not apply to any arbitration between or among you, CML and/or any CML Indemnitees. The arbitrator or arbitral tribunal shall make a decision that is in accordance with these Terms of Service, shall apply the law of the State of New York, without regard to its conflicts of laws principles, and shall state the basis for any decision in writing. Judgment upon the award rendered may be entered in any court having jurisdiction or application may be made to such court for judicial acceptance of the award and an order of enforcement as the case may be.
Waiver of Right to Jury Trial
FURTHER TO THE ARBITARTION PROVISION ABOVE, WITH RESPECT TO ANY DISPUTE, CLAIM, ACTION OR PROCEEDING ARISING FROM OR IN CONNECTION WITH THESE TERMS OF SERVICE OR THE SERVICE, YOU EXPRESSLY AND IRREVOCABLY WAIVE ANY RIGHT YOU MAY HAVE TO A TRIAL BY JURY AND CONSENT TO ARBITRATION AS SET FORTH IN THE FOREGOING ARBITRATION PROVISION.
Downloading an Application from the Apple iTunes Application Store
Apple Terms. If you have downloaded an Application from the Apple iTunes Application Store, the following additional terms apply to such Application (an “App Store Sourced Application”):
You acknowledge that: (i) these Terms of Service is concluded between you and CML only, and not Apple; and (ii) as between CML and Apple, CML is solely responsible for the App Store Sourced Application and content therein. Your use of the App Store Sourced Application must comply with the App Store Terms of Service.
You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application, and, as between CML and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be CML’s sole responsibility.
You and CML acknowledge that, as between CML and Apple, Apple is not responsible for addressing any claims by you or any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
You and CML acknowledge that, in the event of any third party claim, that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between CML and Apple, CML, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms of Service.
You and CML each acknowledge and agree that Apple and Apple’s subsidiaries are third party beneficiaries of these Terms of Service as related to your license of the App Store Sourced Application and that, upon your acceptance of the terms and conditions of these Terms of Service, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms of Service as related to your license of the App Store Sourced Application against you as a third party beneficiary thereof.
Without limiting any other terms of these Terms of Service, you must comply with all applicable third party terms of agreement when using the App Store Sourced Application.
These Terms of Service are a complete statement of the agreement between you and CML, and sets forth the entire liability of CML, its affiliates and licensors, and your exclusive remedy with respect to the Service and its use by you. Any waiver of any of the terms herein by CML must be in a writing signed by an authorized officer of CML and expressly referencing these Terms of Service. If any provision of these Terms of Service is invalid or unenforceable under Applicable Law, then it shall be changed and interpreted to accomplish the objective of such provision to the greatest extent possible under Applicable Law, and the remaining provisions will continue in full force and effect. These Terms of Service, and any rights and licenses granted hereunder, may not be transferred or assigned by you without CML’s prior written consent. CML reserves the right to assign or transfer these Terms of Service or any right or obligation under these Terms of Service to any third party without notice or consent. Subject to the foregoing, these Terms of Service shall be binding upon and inure to the benefit of the parties hereto, their successors and permitted assigns.