Last updated: 11/05/2016
Hello and welcome to Smerle, Inc.’s (“Smerle", “we”, “us” and “our”) online website (including all content and functionality available through the [https://www.smerle.com] domain name, the "Site") and mobile application (the “App”). We are delighted to provide you with access to the Site and App, related data, Smerle’s proprietary software, and content and related documentation and information through the App in connection with the shared commuter services provided by Smerle (collectively the “Services”).
PLEASE READ THESE TERMS OF SERVICE CAREFULLY BEFORE USING THE SITE, THE APP AND/OR SERVICES.
Smerle may modify this Agreement at any time, and such modification shall be effective immediately upon either posting of the modified Agreement or notifying you. You agree to review this Agreement periodically to ensure that you are aware of any modifications and you agree that your continued access or use of the Site and/or App shall be deemed your conclusive acceptance of the modified Agreement.
1. SERVICE TERMS AND LIMITATIONS.
1.1 Proprietary Rights. The entire contents displayed on the Site and App (the “Content”) have copyrighted protection as a collective work under the laws of the United States and other copyright laws. Smerle is the sole exclusive owner of the Content. There may be collective work that is the property of other third parties and such collective work is also protected by copyright and other intellectual property laws. You are allowed to display and, subject to any expressly stated restrictions or limitations relating to specific material, download portions of the Content from the different areas of the Site only for non-commercial use, unless otherwise permitted. Any redistribution, retransmission or publication of any copyrighted material is strictly prohibited without the express written permission of the copyright owner. You may not change or delete any proprietary notices from materials downloaded from the Site or App. You agree not to use any Smerle logo or any other proprietary graphic or trademark without Smerle's express written consent. As between the parties, title, ownership rights, and intellectual property rights in the Content, and any copies or portions thereof, shall remain in Smerle and/or its content providers. Third-party trademarks, service marks and logos contained in the Site are owned and licensed by their respective owners. Any and all rights not expressly granted herein are reserved.
1.2 Grant of Limited License. Your access to the Service is licensed and not sold. Subject to the terms of this Agreement, and upon your registration for an Account (as applicable), Smerle hereby grants you a revocable, non-exclusive, non-transferable account enabling you to access and use the Services and the App and the Site. All the Content that is made available to view and/or download in connection with the Site and App is owned by and is the copyrighted work of Smerle and/or its suppliers and is licensed, not sold. You do not have the right to lend, lease, rent or sublicense the Site, the App and/or the Content. Your use of the Services (including the use of the materials that you download in connection with the use of the App, along with any documentation, text, software, photos, video, graphics, and music, sound or other multimedia files that might accompany it (collectively, “Material”)) is governed by the terms of this Agreement. We reserve the right, without notice and in our sole discretion, to terminate your license to use the Site, the App and Services, and to block or prevent future access to and use of the Site, the App and Services. You are not permitted, directly or indirectly, and the foregoing license grant does NOT include the right for you to (a) publish, publicly perform or display, or distribute to any third party any Materials, including reproduction on any computer network or broadcast or publications media; (b) market, sell or make commercial use of the Site, App, or any Material; (c) systematically collect and use of any data or content including the use of any data spiders, robots, or similar data gathering, mining or extraction methods; (d) make derivative uses of the Site, App, or the Material; or (e) use, frame or utilize framing techniques to enclose any portion of the Site, App (including the images found at this Site, App, or any text or the layout/design of any page or form contained on a page).
1.3 User’s Restrictions. You are not permitted, directly or indirectly, to (a) engage in any acts inconsistent with the principles of copyright protection and fair use, as codified in 17 U.S.C. Sections 106-110, without obtaining the express written consent of Smerle and/or the copyright owner; (b) distribute, display, rent, lease, transfer or otherwise transfer rights to, or in any way exploit, the Content, in whole or in part; or (c) remove any proprietary notices or labels on the Content.
1.4 User Agreement.
(a) Account. In order to use the Services, you will need to register for an Account once you receive an Invite (as defined in Section 1.4(b) below). You agree to: (i) provide true, accurate, current and complete information about yourself when registering for an Account, including any credit card information (your “Credit Card”) as applicable; (ii) maintain and promptly update your Account to keep it true, accurate, current and complete; (iii) review the fees (the “Fees”) to be charged for your use of the Services; and (iv) authorize Smerle and its affiliates to charge your Credit Card for any and all Fees incurred by you for your use of the Services. If you provide any information that is untrue, inaccurate, not current or incomplete, or Smerle has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Smerle has the right to suspend or terminate your Account and refuse any and all current or future use of the Services (or any portion thereof).
(b) Information provided through the Site. In using the Site, you will be given the option to (i) provide us with a home address (your “Home Address”) and a work address (your “Work Address”, and collectively with the Home Address, your “Addresses”) (the Home Address and Work Address will additionally each be referred to herein as a “Departure Point”), (ii) your e-mail address and (iii) if you would like to serve as a commuting driver. For privacy reasons, you may choose to provide an intersection address or the address of a local point of interest if you do want to share the exact address of your work or residence. However, in using the Services, you must provide accurate Addresses to us so that commuting drivers (the “Drivers”) can locate and pick you up. You will additionally be provided an option to share your Commute on social networking websites such as Facebook and Twitter (collectively, the “Social Networks”). You understand and agree that (A) your Commute is used by Smerle to determine whether there are enough Users in your area and with the same Commute to enable you to use the Services; (B) it is in our sole discretion to determine whether there are enough Users to enable the Services for a particular Commute; (C) once a determination is made we will send you an invite (the “Invite”) to register for an Account; (D) providing your Addresses and/or sharing your Commute on Social Networks will not, and does not, guarantee that you will receive an Invite; and (E) if an Invite is received, you will only be able to sign up for an Account through the App.
(c) Use of the App.
(i) You may additionally provide your Addresses through the App, but will not be able to register for an Account until you receive an Invite. Once you receive an Invite, and in order to access the Services, you will be required to register for a Smerle Account through the App. You may register for an Account by providing us with certain information such as your name, your phone number, your e-mail address and your Addresses.
(ii) You additionally understand and agree that (A) your use of the App is conditioned upon your acceptance of the terms of this Agreement; (B) the App contains copyrighted material, trade secrets, and other proprietary materials of Smerle and its licensors; (C) you will only use the App to access and/or use the Services; (C) you will not use any software or services in conjunction with the Service or authorized third-party software which modifies or reroutes, or attempts to modify or reroute, the Service; (E) you will not authorize any third party to access and/or use the Service on your behalf using any automated process such as a BOT, a spider or periodic caching of information stored by the Service on your behalf without a separate written agreement with Smerle; (F) you will not use any software or hardware that reduces the number of Users directly accessing or using the Service (sometimes called 'multiplexing' or 'pooling' software or hardware); (G) you will not lend, lease, rent or sublicense the App; (H) you will permit Smerle to send and deliver updates and notifications to you as part of your use of the App; (I) you will allow the App to automatically download and install updates from time to time from Smerle which are designed to improve, enhance and further develop the App and may take the form of bug fixes, enhanced functions, new software modules and completely new versions; and (J) in order to protect those proprietary materials, except as expressly permitted by applicable law, neither you nor a third party acting on your behalf will: (1) decompile, disassemble or reverse engineer the App; (2) modify or create derivative works of the App; (3) use the App in any manner to provide service bureau, commercial time-sharing or other computer services to third parties; (4) transmit the App or provide its functionality, in whole or in part, over the Internet or other network (except as expressly permitted above); (5) sell, distribute, rent, lease, sublicense or otherwise transfer the App to a third party; or (6) use components of the App to run applications not running on the App.
1.5 User Representations.
(a) You represent and warrant to Smerle that you will (i) maintain the security of your user identification, password and other confidential information relating to your Account; (ii) maintain the security, confidentiality and integrity of all messages and the content that you receive, transmit through or store on the Service; (iii) maintain all charges resulting from the use of your Account, including but not limited to, unauthorized use of your Account prior to you notifying Smerle in writing of such use and taking steps to prevent its further occurrence by changing your password; (iv) comply with the terms set forth herein; and (v) comply with all applicable U.S. and international laws, statutes, ordinances, rules, regulations, contracts and applicable licenses regarding your use of the Services, the App or Site.
(b) You warrant, represent and agree that you will not use the Site or App in a manner that (i) infringes the intellectual property rights or proprietary rights, or rights of publicity or privacy, of any third party; (ii) violates any law, statute, ordinance or regulation; (iii) you should know is harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, fraudulent, deceptive, or misleading or otherwise objectionable; (iv) adversely affects or reflects negatively on Smerle’s goodwill, name or reputation or causes duress, distress or discomfort to Smerle or anyone else, or discourages any person, firm or enterprise from using all or any portion, feature, or function of the Site or App, or from advertising, liking or becoming a supplier to use in connection with the Site or App; (v) send or result in the transmission or junk e-mail, chain letters, duplicative or unsolicited messages, or so-called “spamming”; (vi) transmit, distribute or upload programs or material that contain malicious code, such as viruses, timebombs, cancelbots, worms, trojan horse, spyware, or other potentially harmful programs or other material or information; (vii) falsely report to an employee or agent of Smerle; (viii) circumvent, disable or otherwise interfere with security-related features of the Site, the App or its features that prevent or restrict use or copying of any content; (ix) intercept or attempt to intercept email or other private communications not intended for you; and/or (x) causes the Site or App to be used for commercial or business purposes, including, without limitation, advertising, marketing, or offering goods or services, whether or not for financial or any other form of compensation or through linking with any other Site or web pages.
(c) You further represent and warrant that (A) you are over the age of eighteen (18) and have the power, authority or consent to enter into and perform your obligations under the Agreement; (B) all information provided by you to Smerle, including Credit Card information, is truthful, accurate and complete; (C) you are authorized, or have the permission of the authorized signatory of the Credit Card provided to Smerle, to pay any Fees incurred from use of the Services; and (D) you shall comply with all terms and conditions of this Agreement.
1.6 Use of the Services.
Rides. You understand and agree that Smerle is not a transportation carrier or transportation network company and that the commuter matching Services are provided during the Operating Hours for to and from work commutes only and that we do not operate as a taxi or other ride share service. In using the Services, you must provide accurate Addresses to us so that we can efficiently match passengers with Drivers for a fast, shared commute. You will additionally need to provide a departure time that is within Smerle's operating hours as indicated on the Site and App (the “Operating Hours”) for both morning and evening commutes at least two (2) hours prior to your requested time of departure (each scheduled commute to work and from work is referred to as a “Ride”). Once the requested departure time is received, we will match Drivers to optimal group of commuters and inform both Drivers and commuters about the Ride. While we strive to match Drivers and commuters so the Ride is scheduled at your exact requested time, you understand that, in most cases, Drivers will be requested to start driving within +/- 30 minutes of their requested time and Drivers are expected to be at Departure point of each commuter within +/- 15 minutes of their requested time. Once your Ride is complete, you will receive a feedback notification from us in order to rate the experience of each Ride and provide detailed comments to us regarding the Ride, the App, the Site, the Driver, fellow commuters and/or the Services.
Commuters who are interested in driving a vanpool would have 2 options-
Option#1- Use their own qualified vehicle that seats a minimum of 7 people and get paid $0.54/mile. Option#2- Lease a mini-van on a monthly basis using Smerle’s preferred vendor and get all commute cost (leasing, maintenance, insurance, fuel and toll) reimbursed.
By agreeing to drive using Smerle, all Drivers (both carpool and vanpool drivers) agree and confirm that they meet all requirements listed below-
Must be at least 21 years of age.
Must hold valid, current driver’s license, is in good physical and mental condition to drive and has no record of convictions of any serious offenses whether they are driving related or otherwise.
Owns or has the legal right to operate a vehicle that seats a minimum of 4 people for carpool and 7 people for vanpool and guarantees that vehicle is in good operating condition that meets all the requirements (including registration and emission check) and safety standards set by the department of motor vehicle.
Must have at least 1 year of safe, driving history. Smerle (or Smerle assigned third party) will check the driving record of each driver before inviting and allowing them to use Smerle’s services.
The Drivers are not employees or independent contractors of Smerle or its affiliates. All Drivers are independent volunteers who agree to drive fellow commuters in a not-for-profit dynamic carpool or vanpool, between home and work and get reimbursed some or all of their commute cost.
Must have a valid, current insurance policy listed under the Driver’s name for the qualified vehicle that would be used with Smerle services. The insurance policy should include liability insurance coverage amounts that meets or exceeds the minimums set by state, local or other relevant laws. The Driver is solely responsible for driving safely by following all traffic regulations and for carrying required liability insurance coverage for the vehicle being used, the Driver and for all commuters. The Driver is solely responsible for any parking and traffic violations and/or citations while using Smerle services and for all insurance claims, including but not limited to personal injury, death and property damages.
Must not discriminate any commuter based on gender, age, race, religion, sexual orientation, physical ability etc.
Vanpool drivers must guarantee that the vehicle will not be used for non-commuting purposes in excess of 20% of the overall vehicle mileage and/or the maximum personal mileage limit set for Drivers leasing commuter vehicles.
Drivers using vanpool option#2 must provide 30 day notice before discontinuing to receive all or any reimbursement.
Must be punctual in driving and picking up commuters close to assigned time for accepted rides.
Must co-operate with Smerle if we investigate to confirm any of these requirements are met at any time.
Additional requirements for Option#1 Vanpool Drivers-
Additional requirements for Option#2 Vanpool Drivers-
For commuters- You understand and agree that (i) we will send you notifications via email, text message and/or through the App notifying you (A) when a Ride has been assigned with details including Driver name, vehicle identification and assigned pick-up time, (B) when the Driver is close to your Departure Point along with the exact GPS location of the Driver, and (C) when the Driver reaches your Departure Point; and (ii) once the Driver is at your Departure Point, you will have thirty (30) seconds to board the Vehicle (the “Boarding Time”) and (D) feedback screen to rate your experience after the completion of every Ride.
For Drivers- You understand and agree that (i) we will send you notifications via email, text message and/or through the App notifying you (A) when a Ride has been assigned with details including commuters’ names, departure points and assigned pick-up times along with integration with navigating applications while guiding throughout the Ride and (B) feedback screen to rate your experience after the completion of every Ride.
Emergencies. In the event of an emergency where you need to leave your Work Address and require a Ride outside of the Operating Hours, we will, in our sole discretion, attempt to assist and accommodate you by partnering with the County and/or your employer to ensure you receive transportation to your Home Address, offer you a free trip to your Home Address, or provide reimbursement of the reasonable travel expenses you incur in returning to your Home Address. In cases of emergency where the Driver needs to go home outside of Smerle’s operating hours, the Drivers can inform Smerle and drive their vehicle home without being penalized. You understand and agree that (i) we have the sole discretion in determining whether an event would constitute an “emergency”, (ii) transportation to your Home Address provided by Drivers in the event of an emergency is not guaranteed, and (iii) if we cannot provide transportation to you in the event of an emergency and choose to reimburse you for your travel expense, we retain the right to reject any travel expenses which we deem, in good faith, as unreasonable.
User Interaction. You understand and agree that, during your Ride, (i) the Vehicle is shared with other Users of the Services and you do not have the option to chose which Users share your Vehicle; and (ii) you will not engage in Prohibited Behavior (defined herein). You further agree that (A) we have the right to discontinue providing our Services to you if we determine, in our sole discretion, you have engaged in Prohibited Behavior; (B) we do not control the behavior of other Users sharing your Vehicle; and (C) if you do not want to share a Vehicle with a particular User, you can alter your Commute by entering different Departure Points and/or departure times (in compliance with this Agreement), but understand that we do not guarantee that a particular User will not be in the same Vehicle as you. For purposes of this Agreement, “Prohibited Behavior” means and includes any behavior that causes duress, distress or discomfort to other Users, the Drivers, or anyone else, and/or behavior that is disruptive, discourteous, inappropriate or offensive to other Users in your Vehicle (e.g. carrying on loud conversations on your phone, listening to loud music, or consuming elaborate meals while in a Vehicle).
Fees. Once you have registered for an Account, you will be required to purchase one of the Smerle passes in order to use the Services. Estimated costs are provided on the Site for informational purposes only. Actual Fees will be displayed in the App for your Commute once you register for an Account. You may review the Fees prior to providing us with your Credit Card information or opt to pay using direct deposit.
Missed Ride; Changes; Reimbursement. If you have scheduled a Ride and do not board the Vehicle within the Boarding Time, you understand and agree that the Driver retains the right to leave your Departure Point without you. You will, however, have an option to request another Vehicle through the App. However, you understand and agree that we provide no guarantee that a replacement Vehicle will be available. Changes to your departure time can be made at any time prior to the assignment of a Driver and Vehicle to your Departure Point. You may cancel your Ride at any time. However, you understand and agree that we will not, and are not required to, refund or reimburse you for any missed or canceled Rides.
Repair Fees. You shall be responsible for the cost of any Repair and Cleaning (a defined herein) of any Vehicles and property resulting from use of the Services under your Account. In our sole discretion, upon receipt of request for Repair and Cleaning from a Driver, Smerle reserves the right to facilitate payment for the reasonable cost of such Repair or Cleaning on behalf of the Driver by directly sending you the bill for the Repair and Cleaning costs. By using Smerle, you agree to be held financially responsible for any Repair and Cleaning needed. “Repair and Cleaning” means any damage to or necessary cleaning of any Vehicles and property in excess of normal "wear and tear" damages and necessary cleaning.
2. FEEDBACK. You may additionally provide us with comments and feedback through the Site. Any such comments or ratings you provide through the Site and/or App will collectively be referred to as “Feedback”. By providing Feedback to Smerle, you automatically grant to Smerle a perpetual, royalty-free, non-exclusive, irrevocable, unrestricted, worldwide license to use, copy, sublicense, reproduce, distribute, redistribute, modify, adapt, publish, edit, translate, transmit, create derivative works of, publish and/or broadcast, publicly perform or display any materials or other information (including without limitation, ideas contained therein for new or improved products or services) you submit to us. You further acknowledge and agree that your name and/or likeness may be associated with your Feedback and posted on the Site and/or App and you hereby grant us a perpetual, royalty-free, non-exclusive, irrevocable, unrestricted, worldwide license to use your name and/or likeness in association with your Feedback. You agree that you shall have no recourse against Smerle for any alleged or actual infringement or misappropriation of any proprietary right in your communication to us. You further acknowledge and agree that no compensation will be paid with respect to the use of your Feedback, as provided herein, and that Smerle may remove any Feedback we post on the Site or through the App at any time in our sole discretion. Further, when you provide Feedback, you authorize and direct Smerle to make such copies thereof as Smerle deems necessary in order to facilitate the posting and storage of such content on the Site and/or App.
3. OPERATION. Smerle reserves complete and sole discretion with respect to the operation of the Site and the App. Smerle may, among other things: (a) delete email or private messages if it has not been accessed by a User within the time established by Smerle policies; (b) subject to Section 1, make available to third parties information relating to the Users; and (c) withdraw, suspend or discontinue any functionality or feature of the Site and/or the App.
4. CONTENT AND GENERAL DISCLAIMERS
4.1 General Disclaimer. THE SITE AND THE APP ARE PROVIDED BY SMERLE ON AN "AS IS" BASIS. SMERLE MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE SITE, THE APP OR THE INFORMATION, CONTENT, MATERIALS, OR PRODUCTS INCLUDED ON THE SITE OR THE APP. TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW, SMERLE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND WARRANTIES THAT ACCESS TO OR USE OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE. THERE ARE NO WARRANTIES THAT EXTEND BEYOND THE FACE OF THESE TERMS. SMERLE CANNOT AND DOES NOT WARRANT AGAINST HUMAN AND MACHINE ERRORS, OMISSIONS, DELAYS, INTERRUPTIONS OR LOSSES, INCLUDING LOSS OF DATA. SMERLE CANNOT AND DOES NOT GUARANTEE OR WARRANT THAT FILES AVAILABLE FOR DOWNLOADING FROM THE SITE OR THE APP WILL BE FREE OF INFECTION BY VIRUSES, WORMS, TROJAN HORSES OR OTHER CODE THAT MANIFEST CONTAMINATING OR DESTRUCTIVE PROPERTIES. SMERLE DOES NOT WARRANT OR GUARANTEE THAT THE FUNCTIONS OR SERVICE ACCESSED THROUGH THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT DEFECTS IN THE SITE OR APP WILL BE CORRECTED. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THESE TERMS. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICE, OR WITH ANY OF THESE TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SERVICE. SMERLE MAY CHANGE THE SERVICE OR THE FEATURES IN ANY WAY, AND AT ANY TIME AND FOR ANY REASON. ALTHOUGH SMERLE HAS ATTEMPTED TO PROVIDE ACCURATE INFORMATION ON THE SITE AND APP, SMERLE ASSUMES NO RESPONSIBILITY FOR THE ACCURACY OR COMPLETENESS OF THE INFORMATION.
4.2 Informational Purposes Only. Any opinions or Feedback expressed on the Site or the App are the personal opinions of the original author and not of Smerle, even though the original author may be employed by Smerle. The Content is provided for informational and entertainment purposes only and is not an endorsement or representation by Smerle or any other party. Smerle does not assume any responsibility or liability for any Feedback, opinion or other commentary posted on the Site, the App or any third party website linked to the Site or App and makes no express or implied warranty or guarantee about the accuracy, copyright compliance, legality, or any other aspect of the Content.
4.3 Disclaimer of Third Party Information. You understand that when using the Site and/or the App, you may be exposed to third party content from a variety of sources, and that Smerle is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such third party content. You further understand and acknowledge that you may be exposed to third party content that may be offensive, indecent, inaccurate, or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against Smerle with respect thereto.
5. INDEMNIFICATION. YOU AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS SMERLE, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, INFORMATION PROVIDERS AND SUPPLIERS FROM AND AGAINST ALL LOSSES, EXPENSES, DAMAGES AND COSTS, INCLUDING REASONABLE ATTORNEY'S FEES, RESULTING FROM ANY VIOLATION OF THIS AGREEMENT, BREACH OF YOUR REPRESENTATIONS CONTAINED HEREIN, OR ANY ACTIVITY RELATED TO YOUR ACCOUNT (INCLUDING INFRINGEMENT OF THIRD PARTIES' WORLDWIDE INTELLECTUAL PROPERTY RIGHTS OR NEGLIGENT OR WRONGFUL CONDUCT) BY YOU OR ANY OTHER PERSON ACCESSING THE SITE OR THE APP USING YOUR THE ACCOUNT.
6. WAIVER AND RELEASE. YOU AGREE THAT NEITHER SMERLE NOR ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS OR SUPPLIERS SHALL HAVE ANY LIABILITY TO YOU UNDER ANY THEORY OF LIABILITY OR INDEMNITY IN CONNECTION WITH YOUR USE OF THE SITE, THE APP, THE SERVICE, OR THE CONTENT. YOU SPECIFICALLY ACKNOWLEDGE THAT SMERLE SHALL NOT BE LIABLE FOR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU. YOU HEREBY RELEASE AND FOREVER WAIVE ANY AND ALL CLAIMS YOU MAY HAVE AGAINST SMERLE, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS OR SUPPLIERS (INCLUDING BUT NOT LIMITED TO CLAIMS BASED UPON THE NEGLIGENCE OF SMERLE, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS OR SUPPLIERS) FOR LOSSES OR DAMAGES YOU SUSTAIN IN CONNECTION WITH YOUR USE OF THE SITE, THE APP, THE SERVICE, OR THE CONTENT.
7. LIABILITY LIMITATION.
7.1 NOTWITHSTANDING THE ANYTHING TO THE CONTRARY HEREIN,SMERLE WILL NOT BE LIABLE UNDER ANY THEORY OF LAW, FOR ANY INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF INFORMATION OR DATA OR COSTS OF REPLACEMENT GOODS, ARISING OUT OF THE USE OR INABILITY TO USE THE SITE, THE APP OR RESULTING FROM USE OF OR RELIANCE ON THE INFORMATION PRESENTED, EVEN IF SMERLE MAY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE SITE AND THE APP ARE CONTROLLED AND OFFERED BY SMERLE FROM ITS FACILITIES IN THE UNITED STATES OF AMERICA. SMERLE MAKES NO REPRESENTATIONS THAT THE SITE IS APPROPRIATE OR AVAILABLE FOR USE IN OTHER LOCATIONS. THOSE WHO ACCESS OR USE THE SITE OR APP FROM OTHER JURISDICTIONS DO SO AT THEIR OWN VOLITION AND ARE RESPONSIBLE FOR COMPLIANCE WITH LOCAL LAW.
7.2 YOU AGREE THAT SMERLE HAS NO RESPONSIBILITY OR LIABILITY TO YOU RELATED TO ANY RIDES, GOODS OR SERVICES PROVIDED TO YOU OTHER THAN AS EXPRESSLY SET FORTH IN THIS AGREEMENT.
7.3 CERTAIN JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
8. COPYRIGHT OR INTELLECTUAL PROPERTY INFRINGEMENT NOTIFICATION. Smerle respects the intellectual property rights of others. You can notify Smerle of possible copyright infringement, and Smerle will review all claims of copyright infringement received and remove content deemed to have been posted or distributed in violation of any such laws. To make a claim, please provide the following:
(a) A physical or an electronic signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest that is allegedly infringed;
(b) A description of the copyrighted work or other intellectual property that you claim has been infringed;
(c) A description of where the material that you claim is infringing is located on the Site reasonably sufficient to permit Smerle to locate the material;
(d) Your contact information, including your address, telephone number, and email;
(e) A statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
(f) A statement by you that the above information in your notice is accurate and that you, made under penalty of perjury, are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.
Contact the agent designated to receive and act on copyright violations under the Digital Millennium Copyright Act ("DMCA"). Claims can be directed to us at [(650) 564-7790, email@example.com or to Smerle Inc., 100 W. El Camino Real #42, Mountain View, CA 94040].
9. TERM AND TERMINATION. Either you or Smerle may terminate this Agreement at any time and for any reason. The only exception to this are Drivers who commit to drive at least 4 days/week using their own vehicle in Option#1 or Drivers who lease their vehicle using Option#2. For such Drivers, you need to provide Smerle, a 30 day written notice before you can discontinue driving. Smerle reserves the right to terminate the agreement at any time even for such drivers.
In addition, this Agreement will terminate immediately, without notice, if you fail to comply with the terms of this Agreement. Smerle also reserves the right to terminate or suspend your Account and access to the Site, App and Services without prior notice. The provisions of Sections 1.1 (Proprietary Rights), 1.3 (User Restrictions), 1.4 (User Agreement), 1.5 (User Representations), 2 (Feedback), 4 (Content and General Disclaimers), 5 (Indemnification), 6 (Waiver and Release), 7 (Limitation of Liabilities), 9 (Term and Termination), and 12 (Miscellaneous) shall survive any termination of this Agreement.
11. Export Controls. You shall comply with all export laws and restrictions and regulations of the Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control (“OFAC”), or other United States or foreign agency or authority, and not to export, or allow the export or re-export of the Material in violation of any such restrictions, laws or regulations. By downloading or using the Material, you are agreeing to the foregoing and you are representing and warranting that you are not located in, under the control of, or a national or resident of any restricted country or on any such list.
12. MISCELLANEOUS. This Agreement shall be governed by and construed in accordance with the laws of the State of California. You agree that any legal action or proceeding between Smerle and you for any purpose concerning this Agreement or the parties' obligations hereunder shall be brought exclusively in a court of competent jurisdiction sitting in Santa Clara County, California, United States. Any cause of action or claim you may have with respect to Smerle must be commenced within one (1) year after the claim or cause of action arises. Smerle’s failure to insist upon or enforce strict performance of any provision of this Agreement shall not be construed as a waiver of any provision or right. No waiver of any term, provision or condition of this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed to be, or shall constitute, a waiver of any other term, provision or condition hereof, whether or not similar, nor shall such waiver constitute a continuing waiver of any such term, provision or condition hereof. No waiver shall be binding unless executed in writing by the party making the waiver. This Agreement constitutes the complete and exclusive statement of the agreement between the parties with respect to the Service and supersedes any and all prior or contemporaneous communications, representations, statements and understandings, whether oral or written, between the parties concerning the Service. If any action in law or in equity is necessary to enforce the terms of this Agreement, the prevailing party will be entitled to reasonable fees of attorneys, accountants, and other professionals, and costs and expenses in addition to any other relief to which such prevailing party may be entitled. The provisions of this Agreement are severable, and in the event any provision hereof is determined to be invalid or unenforceable, such invalidity or unenforceability shall not in any way affect the validity or enforceability of the remaining provisions hereof. No provisions of this Agreement are intended, nor will be interpreted, to provide or create any third party beneficiary rights or any other rights of any kind in any Nonprofit User, client, customer, affiliate, or any party hereto or any other person unless specifically provided otherwise herein, and except as so provided, all provisions hereof will be personal solely between the parties to this Agreement; except that Sections 5, 6, and 7 are intended to benefit Smerle and its officers, directors, employees, agents, licensors, and suppliers. Smerle may assign its rights and duties under this Agreement to any party at any time without notice to you.
13. NOTICE. Smerle may deliver notice to you under this Agreement by means of electronic mail, a general notice on the Site or the App, or by written communication delivered by first class U.S. mail to your address on record in the Account. You may give notice to Smerle at any time via electronic mail to the Site at the following address:
ATTN: Member Services
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