RideSwell Terms of Service
October 7, 2018
THIS FOLLOWING USER AGREEMENT DESCRIBES THE TERMS AND CONDITIONS ON WHICH SWELL HOLDING CO. (“RideSwell”) OFFERS YOU ACCESS TO THE RIDESWELL PLATFORM.
Welcome to the user agreement (the "Agreement" or "User Agreement" or "Terms of Service") for RideSwell (the "RideSwell Platform"), an application owned and operated by Swell Holding Co. a Delaware C-Corporation, whose principal offices in Santa Monica, CA. This Agreement is a legally binding agreement made between you ("You," "Your," "Yourself," “User,” “Rider” or “Participating Driver”, as the case may be) and Swell Holding Co. ("RideSwell," "We," "Us" or "Our").
IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, PLEASE DO NOT USE OR ACCESS THE RIDESWELL PLATFORM OR REGISTER FOR THE SERVICES PROVIDED ON THE RIDESWELL PLATFORM. IF YOU DO NOT ACCEPT ALL THE TERMS OF THIS AGREEMENT, THEN RIDESWELL IS UNWILLING TO LICENSE THE RIDESWELL PLATFORM TO YOU.
1. Ride Sharing Services Provided by RideSwell.
1.1 The RideSwell Platform provides a means to enable persons who seek vehicular transportation (a "Rider") to make a booking for shared vehicular transportation (a “Ride”) directly with a driver (a “Participating Driver”). For purposes of this Agreement these services shall collectively be defined as the "Services" or “Users”.
1.2 This Agreement describes the terms and conditions that will govern Your use of and participation in the RideSwell Platform, whether as a Rider or a Participating Driver.
1.3 In general, the RideSwell Platform (a) provides Participating Drivers with the means and opportunity to share the costs of a contemplated Ride by posting on the RideSwell Platform the time, pick up point and destination of a Ride the Driver intends to take (a “Proposed Ride”); and (b) provides Riders the means and opportunity to obtain a Ride on a shared cost basis with the Participating Driver and/or other Riders.
1.4 Once a Proposed Ride is posted on the RideSwell Platform by a Participating Driver, the RideSwell Platform allows Riders to connect with the Participating Driver and book a Ride directly with the Participating Driver. RideSwell has no involvement or participation in the process, other than providing Participating Drivers and Riders with a means to connect with each other, through the RideSwell Platform.
1.5 Not more than 7 Riders can book a Ride on any one trip and a Participating Driver may elect to accept less than the maximum number of Riders.
1.6 A Participating Driver notifies Riders if they have been selected to participate in a Proposed Ride, which confirmation should include the date of the Ride, the pickup time and location, the destination point and projected arrival time. All of the Riders and Participating Driver are responsible for agreeing to when the Participating Driver needs to leave the destination location. Riders accept the risk that the Driver may leave without notice from the location. Communication and being prompt is important for the best experience for all participants.
1.7 Participating Drivers also inform Riders of the estimated cost of the Ride including the amount each Rider is suggested to donate or reimburse.
1.8 It is not intended that Participating Drivers, or RideSwell, will charge a fee or make any profit on a Ride. Instead, the purpose of RideSwell is to provide a means for a number of individuals to share transportation for leisure based activities and if the cost of a Ride is split among the Users then that is considered an independent occurrence not a requirement.
1.9 Accordingly, the total amount that can be suggested by the RideSwell Platform is intended to be an approximation of the actual charges that will be incurred by the Participating Driver to complete a Ride, including gas and parking as mutually agreed by all users. and wear and tear on their vehicle. At present, that cost (the “Reimbursement Rate”) has been determined to be $0.24 per mile, although this amount is subject to change (the “Mileage Factor”). Riders will be responsible to pay the Participating Driver directly and RideSwell does not collect any funds from Riders or make any transfers or payments to Participating Drivers.
1.10 Accordingly, each User acknowledges that any claims arising out of a Ride relating to payment are solely between Participating Drivers and Riders and RideSwell has absolutely no responsibility or liability in respect of such matters.
2. Participating Drivers Eligibility and User’s need to Conduct their Own Diligence
2.1 There are no eligibility requirements to solicit Rides and become a Participating Driver. However, a Participating Driver shall be governed by the applicable state driver license laws and should have a valid driver’s license and maintain liability insurance required by said applicable laws. There could bebe tax implications to Participating Drivers, including federal, state and local income tax on revenues or more accurately described as reimbursements generated by Participating Drivers from Riders as well as an obligation to collect and/or pay sales and use and other taxes. RideSwell makes no warranty or representation regarding tax matters and Participating Drivers are advised to consult with their own independent professional advisors.
2.2 RideSwell makes no representation or warranty regarding Participating Drivers, Nor does RideSwell conduct any investigation or due diligence on Participating Drivers, including but not limited to whether the Participating Driver has a valid driver’s license and if so, the class of a driver’s license, the driving record of a Participating Driver, including traffic violations, if a Participating Driver has a criminal record, is financially responsible with respect to any other personal or business data or attributes relating to a Participating Driver.
2.3 Nor are Participating Drivers required to obtain or maintain any particular type or amount of insurance and RideSwell does not take any steps to confirm the existence or amount of insurance.
2.4 In contrast to other transportation services, neither the RideSwell Platform nor Participating Drivers are subject to regulatory oversight and compliance.
2.5 RideSwell is merely a means to connect Participating Drivers and Riders. Riders are solely responsible for and should conduct their own investigation and due diligence regarding a Participating Driver, including driving authorizations, competence, driving record, reliability, criminal record, safety, financial responsibility, insurance and all other business and personal attributes. Nor does RideSwell conduct due diligence on Riders, including but not limited to criminal background checks, financial responsibility, or other personal or business data attributes and Participating Drivers are solely responsible for and should conduct their own investigation and due diligence.
RIDESWELL DOES NOT PROVIDE TRANSPORTATION SERVICES, AND RIDESWELL IS NOT A TRANSPORTATION CARRIER. IT IS UP TO THE PARTICIPATING DRIVER TO DECIDE WHETHER OR NOT TO OFFER A RIDE TO A RIDER CONTACTED THROUGH THE RIDESWELL PLATFORM, AND IT IS UP TO THE RIDER TO DECIDE WHETHER OR NOT TO ACCEPT A RIDE FROM ANY PARTICIPATING DRIVER. ANY DECISION BY A RIDER TO ACCEPT TRANSPORTATION SERVICES AFTER SUCH RIDER SELECTS A PARTICIPATING DRIVER THROUGH THE RIDESWELL PLATFORM IS A DECISION MADE IN SUCH RIDERS'S SOLE DISCRETION. RIDESWELL MERELY PROVIDES A MEANS FOR RIDERS TO ACCESS, SELECT AND CONNECT WITH A PARTICIPATING DRIVER TO SCHEDULE A RIDE, BUT DOES NOT,AND DOES NOT INTEND TO,PROVIDE TRANSPORTATION SERVICES OR PARTICIPATING DRIVERS, OR ACT IN ANY MANNER AS A TRANSPORTATION CARRIER, AND RIDESWELL HAS NO RESPONSIBILITY OR LIABILITY TO ANY RIDER OR PARTICIPATING DRIVER WHATSOEVER FOR OR IN CONNECTION WITH ANY TRANSPORTATION SERVICES PROVIDED TO ANY RIDER BY ANY PARTICIPATING DRIVER USING THE RIDESWELL PLATFORM INCLUDING BUT NOT LIMITED TO PERSONAL INJURY, PROERTY DAMAGE OR OTHER LOSSES. YOU HEREBY ACKNOWLEDGE AND AGREE THAT ANY SUCH RESPONSIBILITY OR LIABILITY SHALL BE THE SOLE AND EXCLUSIVE RESPONSIBILITY OR LIABILITY OF THE PARTICIPATING DRIVER AND THE RIDER, AS THE CASE MAY BE.
3.1 All suggested donations made by Riders are made directly to the Participating Driver and the RideSwell Platform does not currently contemplate or have any mechanism for payment. The Participating Driver calculates the charge to a Rider based on the Mileage Factor. RideSwell is not responsible to the Participating Driver for collecting any amount owed from a Rider. Nor is RideSwell responsible for disputes or claims between a Rider and Participating Driver regarding the amount charged, payment and collection or any other matter relating to a Ride.
4.1 RideSwell does not purchase insurance coverages to protect Participating Drivers, Riders or third parties or their belongings. RideSwell does not require Participating Drivers to obtain or maintain insurance and makes no attempt to determine if insurance is in place. Riders are responsible for and encouraged to make their own independent examination regarding such matters.
5. Ride Arrangements
5.1 By booking a Ride with a Participating Driver, You will be deemed to have accepted all of the terms and conditions regarding the Ride as imposed by the Participating Driver and to have entered into a binding contract with such Participating Driver in respect thereof (a “Ride Arrangement”).
5.2 RideSwell shall have no responsibility or liability with respect to the performance by any Participating Driver of his or her obligations or for any other act or omission relating to a Ride, including but not limited to delays, non-performance, damage or injuries to person or property or otherwise. Nor will RideSwell be responsible to Participating Drivers for the acts and omissions of Riders, including but not limited to non-payment, lateness, or other matters.
6.1 Our Services are available only to, and may only be used by individuals who can form legally binding contracts under applicable law. You represent and warrant that You have the right, authority and capacity to enter into this Agreement and each Ride Arrangement and to abide by the terms and conditions of this Agreement and each Ride Arrangement.
6.2 You are the sole authorized user of Your RideSwell account. You are responsible for maintaining the confidentiality of any password provided by You or RideSwell for accessing your account or the Services. You are solely and fully responsible for all activities that occur under Your password or account. RideSwell has no control over the use of any User's account and expressly disclaims any liability derived therefrom. Should You suspect that any unauthorized party may be using Your password or account or You suspect any other breach of security, You will contact Us immediately.
6.3 RideSwell is not available to children under the age of 18 or Users who have had their User account temporarily or permanently deactivated. By becoming a User, you represent and warrant that you are at least 18 years old and that you have the right, authority, and capacity to enter into and abide by the terms and conditions of this Agreement. You may not authorize third parties to use your Account, and you may not allow persons under the age of 18 to receive transportation or logistics services from Third Party Providers unless they are accompanied by you. If we discover or have any reason to suspect that you are not at least 18 years of age, we reserve the right to suspend or terminate your access to the Service immediately and without notice.
Individuals who have been convicted of (a) any felony; (b) any serious criminal offense, including, but not limited to sexual and/or violent offenses; or (c) any misdemeanor within the past seven (7) years are not eligible to use the Service. By using the Service, you represent and warrant that you have never been convicted of (a) any felony; (b) any serious criminal offense, including, but not limited to sexual and/or violent offenses; (c) and that you have not been convicted of committing a misdemeanor in the seven (7) years prior to applying for an Account. If you are convicted of a felony or misdemeanor after you start using the Service, you must notify us and stop using the Service immediately. Any false representation or unauthorized use of the Service may result in immediate termination of all rights to use or access the Service, and may be subject to legal action.
You may not assign or otherwise transfer your Account to any other person or entity. You agree to comply with all applicable laws when using the Services, and you may only use the Services for lawful purposes (e.g., no transport of unlawful or hazardous materials). You will not in your use of the Services cause nuisance, annoyance, inconvenience, or property damage, whether to the Third Party Provider or any other party. In certain instances you may be asked to provide proof of identity to access or use the Services, and you agree that you may be denied access to or use of the Services if you refuse to provide proof of identity
7.1 This Agreement applies to any version of the RideSwell Platform that you download from the Apple App Store, Google, or any appstore provider from whose site You downloaded the RideSwell Platform (“Other Application Provider”), including any updates or supplements to the RideSwell Platform unless they come with separate terms in which case those terms apply. This Agreement is entered into between You and RideSwell. Neither Apple, Inc. ("Apple"), nor Google Inc. (“Google”), nor any Other Application Provider is a party to this Agreement and shall have no obligations with respect of the RideSwell Platform. RideSwell is solely responsible for the RideSwell Platform and the content thereof as set forth hereunder. However, Apple, Google and any such Other Application Providers are third party beneficiaries of this Agreement. Upon Your acceptance of this Agreement, Apple, Google and any such Other Application Provider, as the case may be, shall have the right (and will be deemed to have accepted the right) to enforce this Agreement against You as a third party beneficiary thereof.
7.2 We may make modifications, deletions and/or additions to this Agreement (“Changes”) at any time. Changes will be effective: (i) immediately after RideSwell provides notice of the Changes, whether such notice is provided through the RideSwell Platform user interface, is sent to the e-mail address associated with your account or otherwise; or (ii) when you opt-in or otherwise expressly agree to the Changes or a version of this Agreement incorporating the Changes, whichever comes first. This Agreement may not be otherwise amended except in writing signed by You and RideSwell.
7.3 From time to time updates to the RideSwell Platform may be issued through Other Application Providers. Depending on the update, you may not be able to use the RideSwell Platform until you have downloaded or streamed the latest version of the RideSwell Platform and accepted any new terms.
7.4 The RideSwell Platform may be used on any Android device that You own or control and/or any iPhone or iPod touch or other compatible hand held device that You own or control ("Devices").You will be assumed to have obtained permission from the owners of Devices . You and they may be charged by Your and their service providers for internet access on the Devices. You accept responsibility in accordance with the terms of this Agreement for the use of the RideSwell Platform or any Service on or in relation to any Device, whether or not it is owned by you.
8. Term and Termination
8.1 This Agreement is effective upon any of the following: use of the RideSwell Platform or the Services creating an account on the RideSwell Platform or by clicking the “Accept” button below for new Users and upon the posting dates of any subsequent amendments to this Agreement for all current Users. Either You or We may terminate Your participation in the RideSwell Platform by removing Your Information at any time, for any or no reason, without explanation, effective upon sending written or email notice to the other party.
8.2 Upon such termination, We will remove all of Your Information from Our servers, though We may retain an archived copy of records We have about You as required by law or for legitimate business purposes. We maintain sole discretion to bar Your use of the Services in the future, for any or no reason. Even after Your participation in the RideSwell Platform is terminated, this Agreement will remain in effect.
8.3 We reserve the right, but are not obligated, to investigate and terminate Your use of the RideSwell Platform or the Services if You have misused the RideSwell Platform or the Booking Services, or behaved in a way which could be regarded by Us as inappropriate or whose conduct is unlawful or illegal or if you have breached any terms of this Agreement.
8.4 On termination for any reason:
8.4.1 all rights granted to you under this Agreement shall cease;
8.4.2 you must immediately cease all activities authorized by this Agreement, including your use of any Services or the RideSwell Platform;
8.4.3 you must immediately delete or remove the RideSwell Platform from all Devices, and immediately destroy all copies of the RideSwell Platform; and
8.4.4 We may remotely access the Devices and remove the RideSwell Platform from all of them and cease providing you with access to the Booking Services.
9. Your Information
9.1 Your Information is any information You provide, publish or display ("post") to the RideSwell Platform or send to any Participating Driver or in any public message area (including, but not limited to the feedback section) or through any email feature ("Your Information"). Your Information will be stored on computers. You consent to Us using Your Information to create a User account that will allow You to participate in the Services. You are solely responsible for Your Information and Your interactions with other people in the public, and We act only as a passive conduit for Your online posting of Your Information. When You use the RideSwell Platform, You agree to provide accurate, current and complete information as prompted by Our registration form and to maintain and timely update Your Information to keep it accurate, current and complete at all times during the Term of the Agreement. You agree that We and other people of the public may rely on Your Information as accurate, current and complete. You acknowledge that if Your Information is untrue, inaccurate, not current or incomplete in any respect, We have the right to terminate this Agreement and Your use of the Services.
10. Social Media and Networking Sites
10.1 As part of the functionality of the RideSwell Platform, You may be able to login through online accounts You may have with third party service providers (each such account, a "Third Party Account") by either: providing Your Third Party Account login information through the RideSwell Platform, or allowing RideSwell to access Your Third Party Account, as is permitted under the applicable terms and conditions that govern Your use of each Third Party Account. You represent that You are entitled to disclose Your Third Party Account login information to RideSwell and/or grant RideSwell access to Your Third Party Account (including, but not limited to, for use for the purposes described herein), without breach by You of any of the terms and conditions that govern Your use of the applicable Third Party Account and without obligating RideSwell to pay any fees or making RideSwell subject to any usage limitations imposed by such third party service providers. By granting RideSwell access to any Third Party Accounts, You understand that RideSwell may access, make available and store (if applicable) any content that You have provided to and stored in Your Third Party Account (the "SNS (social networking site) Content") so that it is available on and through the RideSwell Platform via Your account, including without limitation any friend, contacts or following/followed lists, and RideSwell may submit and receive additional information to Your Third Party Account as indicated herein. Unless otherwise specified in this Agreement, all of Your SNS Content (“Your Content”), if any, shall be considered to be Your Information and Your Content for purposes of this Agreement. Depending on the Third Party Accounts You choose and subject to the privacy settings that You have set in such Third Party Accounts, personally identifiable information that You post to Your Third Party Accounts may be available on and through the RideSwell Platform.
10.2 Please note that if a Third Party Account or associated service becomes unavailable or the RideSwell Platform's access to such Third Party Account is terminated by the third party service provider (which may occur at any time and without notice), then SNS Content may no longer be available on and through the RideSwell Platform and/or you may no longer be able to login through such Third Party Account. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD PARTY SERVICE PROVIDERS. RideSwell makes no effort to review any SNS Content for any purpose, including but not limited to, for accuracy, legality or non-infringement, and RideSwell is not responsible for any SNS Content.
11. Third Party Sites
11.1 The RideSwell Platform may contain links to other independent third-party websites ("Third-party Sites"). Third-party Sites are not under our control, and we are not responsible for and do not endorse their content or their privacy policies (if any). You will need to make your own independent judgment regarding your interaction with any Third-party Sites, including the purchase and use of any products or services accessible through them.
12. Intellectual Property Rights
12.1 As between You and RideSwell, RideSwell owns and retains ownership in the RideSwell Platform, and all intellectual property therein. These rights include and are not limited to database rights, copyright, patent rights, design rights (whether registered or unregistered), trademarks (whether registered or unregistered) and other similar rights wherever existing in the world together with the right to apply for protection of the same. All other trademarks, logos, service marks, company or product names set forth in the RideSwell Platform are the property of their respective owners. You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the RideSwell Platform or the Services ("Submissions") provided by You to Us are non-confidential and shall become the sole property of RideSwell, and you agree to assign and hereby do assign to RideSwell all right, title and interest in and to any Submissions. RideSwell shall own the exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of, these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to You.
12.2 You acknowledge that you have no right to have access to the RideSwell Platform in source-code form.
13. License Restrictions and Applicable Use Restrictions
13.1 You agree that You will use the Services in a manner consistent with any and all applicable laws and regulations and this Agreement.
13.2 This Agreement does not allow You to, and You agree not to:
13.2.1 rent, lease, lend, sell, sub-license, redistribute, adapt or sublicense the RideSwell Platform;
13.2.2 copy (except as expressly permitted by this license and the Usage Rules), decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the RideSwell Platform, any updates, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law);
13.2.3 use any robot, spider, site search/retrieval application, or other manual or automatic device or process to retrieve, index, "data mine", or in any way reproduce or circumvent the navigational structure or presentation of the Booking Services or its contents;
13.2.4 permit the RideSwell Platform or any part of it to be combined with, or become incorporated in, any other programs;
13.2.5 remove our copyright notice from any entire or partial copies you make of the RideSwell Platform on any medium; or
13.2.6 introduce, purposefully, negligently or otherwise, any viruses, Trojan horses, worms, time bombs, cancelbots, easter eggs or other computer programming routines that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information.
together the "License Restrictions”.
13.3 You must not:
13.3.1 use the RideSwell Platform in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with this Agreement, or act fraudulently or maliciously, for example, by hacking into or inserting malicious code, including viruses, or harmful data, into the RideSwell Platform, or any operating system;
13.3.2 infringe Our intellectual property rights or those of any third party in relation to your use of the RideSwell Platform or Services or remove any copyright, trademark or other proprietary rights notices contained in the Services or the RideSwell Platform;
13.3.3 transmit or upload any material that is defamatory, offensive, false, misleading, inaccurate or otherwise objectionable in relation to your use of the RideSwell Platform or Booking Services;
13.3.4 post, email or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment
13.3.5 use the RideSwell Platform or any Service in a way that could damage, disable, overburden, impair, interfere, disrupt or compromise our systems, servers, security or networks connected to the Services, or interfere with other users, the provision of the Services or the RideSwell Platform;
13.3.6 collect or harvest any information or data from any Service or our systems or attempt to decipher any transmissions to or from the servers running any Services;
13.3.7 impersonate any person or entity; "Stalk" or otherwise harass any person; Express or imply that any statements You make are endorsed by Us, without Our specific prior written consent;
13.3.8 post, distribute or reproduce in any way any copyrighted material, trademarks, or other proprietary information without obtaining the prior consent of the owner of such proprietary rights;
13.3.9 "frame" or "mirror" any part of the RideSwell Platform or the Services, without Our prior written authorization or use meta tags or code or other devices containing any reference to Us or the Booking Services or the RideSwell Platform in order to direct any person to any other web site for any purpose;
13.3.10 create liability for Us or cause Us to become subject to regulation as a transportation carrier or provider of taxi or other transportation services; or
13.3.11 transfer, use, or sell Your RideSwell account and/or ID to any other party. We reserve the right,
together "Acceptable Use Restrictions".
13.4 Any attempt to violate the rights of RideSwell and its licensors or the any breach of the License Restrictions or Applicable Use Restrictions may result in termination of this Agreement and may result in you being liable for damages to RideSwell or its licensors. We do not however have any obligation to reject any User that does not comply with these prohibitions.
14. Your Information
15. Copyright Complaints and Copyright Agent
15.1 RideSwell respects the intellectual property of others, and expects Users to do the same. If You believe, in good faith, that any materials on the RideSwell Platform infringe upon Your copyrights, please send the following information to email@example.com:
15.1.1 A description of the copyrighted work that You claim has been infringed, including specific location on the RideSwell Platform where the material You claim is infringed is located. Include enough information to allow RideSwell to locate the material, and explain why You think an infringement has taken place;
15.1.2 A description of the location where the original or an authorized copy of the copyrighted work exists – for example, the URL (Internet address) where it is posted or the name of the book in which it has been published;
15.1.3 Your address, telephone number, and e-mail address;
15.1.4 A statement by You that You have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
15.1.5 A statement by You, made under penalty of perjury, that the information in Your notice is accurate, and that You are the copyright owner or authorized to act on the copyright owner's behalf; and
15.1.6 An electronic or physical signature of the owner of the copyright or the person authorized to act on behalf of the owner of the copyright interest.
16.1 You will defend, indemnify, and hold Us and Our parent company, subsidiaries and other affiliates, and our and each of their respective officers, directors, advisors, managers, shareholders, members, employees, agents and any third parties harmless for any losses, costs, liabilities and expenses (including reasonable attorneys' fees) relating to or arising out of Your use of the RideSwell Platform or the Services, including but not limited to: (i) Your breach of this Agreement and the documents it incorporates by reference, (ii) Your violation of any law or the rights of a third party, including, without limitation, Participating Drivers, Users, other Riders, other motorists, and pedestrians; or (iii) any allegation that any materials (including Your Information or Your Content) that You submit to Us or transmit to the RideSwell Platform or to Us infringes or otherwise violates the copyright, trademark, trade secret, publicity or other intellectual property or other rights of any third party. This indemnity shall be applicable without regard to the negligence of any party, including any indemnified person, provided that Your indemnity obligation shall be excused solely to the extent (if any) the loss, cost, liability or expense arises directly out of the gross negligence or willful misconduct of the indemnified party.
17. Online Content Disclaimer
17.1 Opinions, advice, statements, offers, or other information or content made available through the RideSwell Platform or the Services, but not directly by Us, are those of their respective authors, and should not necessarily be relied upon. Such authors are solely responsible for such content. We do not guarantee the accuracy, completeness, or usefulness of any information on the RideSwell Platform or through the Services and neither do We adopt nor endorse nor are We responsible for the accuracy or reliability of any opinion, advice, or statement made by parties other than Us.
17.2 We shall not be responsible for any loss or damage resulting from anyone's reliance on information or other content posted on the RideSwell Platform or through the Services, or transmitted to Participants. We reserve the right, but We have no obligation, to monitor the materials posted in the public areas of the RideSwell Platform or through the Services. Notwithstanding this right, You remain solely responsible for the content of any photos, profiles (including Your name, image, and likeness), messages, notes, text, information, music, video, advertisements, listings, and other content (the "Content") that You post in the public areas of the RideSwell Platform or through the Services and in Your private e-mail or text messages. We shall have the right to remove any such material that in Our sole opinion violates, or is alleged to or may violate, the law or this agreement or which we believe might be offensive, illegal, or that might violate the rights, harm, or threaten the safety of Users or others. E-mails or text messages sent between You and other RideSwell Users that are not readily accessible to the general public will be treated by Us as private to the extent required by applicable law.
17.3 The RideSwell Platform contains (or You may be sent through the RideSwell Platform) links to other websites, including the websites of the Participating Drivers ("Third Party Sites") as well as articles, photographs, text, graphics, pictures, designs, music, sound, video, information, applications, software and other content or items belonging to or originating from third parties (the "Third Party Applications, Software or Content"). Such Third Party Sites and Third Party Applications, Software or Content are not investigated, monitored or checked for accuracy, appropriateness, or completeness by Us, and We are not responsible for any Third Party Sites accessed through the RideSwell Platform, the Services or any Third Party Applications, Software or Content posted on, available through or installed from the RideSwell Platform or the Services, including the content, accuracy, offensiveness, opinions, reliability, privacy practices or other policies of or contained in the Third Party Sites or the Third Party Applications, Software or Content. Inclusion of, linking to or permitting the use or installation of any Third Party Site or any Third Party Applications, Software or Content does not imply approval or endorsement thereof by Us. If You decide to leave the RideSwell Platform and access the Third Party Sites or to use or install any Third Party Applications, Software or Content, You do so at Your own risk. You should review the applicable terms and policies, including privacy and data gathering practices, of any web site to which You navigate from the RideSwell Platform or relating to any applications You use or install from the RideSwell Platform, including those of the Participating Drivers.
17.4 You agree to not provide User Content that is defamatory, libelous, hateful, violent, obscene, pornographic, unlawful, or otherwise offensive, as determined by RideSwell in its sole discretion, whether or not such material may be protected by law. RideSwell may, but shall not be obligated to, review, monitor, or remove User Content, at RideSwell’s sole discretion and at any time and for any reason, without notice to you.
18. On Line Content Disclaimer
18.1 We, Our parent company, subsidiaries, and other affiliates and our and each of their respective officers, directors ,shareholders ,members, advisors, managers, employees and agents provide the RideSwell Platform and the Services on an "as is" basis and without any warranty or condition, express, implied or statutory. We do not guarantee and do not promise any specific results from use of the RideSwell Platform and/or the Services. We, Our parent company, subsidiaries and other affiliates and each of our and their respective officers, directors, shareholders, members, managers, employees and agents specifically disclaim any implied warranties of title, merchantability, fitness for a particular purpose and non-infringement. Some states do not allow the disclaimer of implied warranties, so the foregoing disclaimer may not apply to You. This warranty gives You specific legal rights and You may also have other legal rights that vary from state to state. We do not warrant that Your use of the RideSwell Platform or the Services will be accurate, complete, reliable, current, secure, uninterrupted, always available, or error-free, or will meet Your requirements, that any defects in the RideSwell Platform or the Services will be corrected, or that the RideSwell Platform or the Services are free of viruses or other harmful components. We disclaim liability for, and no warranty is made with respect to, connectivity and availability. We are not responsible or liable in any manner for any Content posted on the RideSwell Platform or in connection with the Services, whether posted or caused by Users of the RideSwell Platform, by RideSwell, by third parties or by any of the equipment or programming associated with or utilized in the RideSwell Platform or the Services. Although We provide rules for User conduct and postings, We do not control and are not responsible for what Users post, transmit or share on the RideSwell Platform and are not responsible for any offensive, inappropriate, obscene, unlawful or otherwise objectionable content You may encounter on the RideSwell Platform or through the Services or in connection with any Content. RideSwell is not responsible for the conduct, whether online or offline, of any User of the RideSwell Platform or Services. It also is possible for others to obtain personal information about You due to Your use of the RideSwell Platform or the Services, and that the recipient may use such information to harass or injure You. We are not responsible for the use of any personal information that You disclose on the RideSwell Platform or through the Services. Same states do not allow the disclaimer of warranties so parts of the foregoing disclaimer may not apply to You and You may have additional rights.
18.2 Riders are solely responsible for Your interactions with Participating Drivers and as are Participating Drivers with Riders. We reserve the right, but have no obligation, to monitor disputes between You and Participating Drivers. We disclaim all liability, regardless of the form of action, for the acts or omissions of other Participants or Users (including unauthorized users, or "hackers") and Participating Drivers. RideSwell only offers a venue that enables Riders to connect with Participating Drivers. RideSwell does not offer transportation services and RideSwell is not a transportation company. We are not involved in the actual transportation provided by Participating Drivers. As a result, we have no control over the quality or safety of the transportation that occurs as a result of a Booking made on the RideSwell Platform. We cannot ensure that a Participating Driver is who he or she claims to be or that a Participating Driver will actually complete an arranged service or that a Rider will show up for and/or pay for a Ride We reserve the right to change any and all Content, software and other items used or contained in the RideSwell Platform and the Services at any time without notice. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof, or any affiliation therewith, by RideSwell or the RideSwell Platform.
18.3 The RideSwell Platform and the Services may be temporarily unavailable from time to time for maintenance or other reasons. RideSwell assumes no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, User communications. RideSwell is not responsible for any technical malfunction or other problems of any telephone or telecommunications network or service, computer systems, servers or providers, computer or mobile phone equipment, software, failure of email or players on account of technical problems or traffic congestion on the Internet, on the RideSwell Platform, on any website or any combination thereof, including injury or damage to any User's or to any other person's computer, mobile phone, or other hardware or software, related to or resulting from using or downloading materials in connection with the Web and/or in connection with the Services.
18.4 Additionally, by using the Ride Swell Platform or any Service, you acknowledge and agree that Internet transmissions are never completely private or secure. You understand that any message or information you send using the App or any Service may be read or intercepted by others, even if there is a special notice that a particular transmission is encrypted.
19. Limitation of Liability
IN NO EVENT WILL WE, OUR PARENT COMPANY, OUR SUBSIDIARIES, OR OTHER AFFILIATES OR OUR OR EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, MANAGERS, SHAREHOLDERS, MEMBERS, EMPLOYEES, OR AGENTS BE LIABLE TO YOU FOR ANY INCIDENTAL, CONSEQUENTIAL, OR INDIRECT DAMAGES (INCLUDING, BUT NOT LIMITED TO LOST PROFIT OR, DAMAGES FOR DELETION, CORRUPTION, LOSS OF DATA, LOSS OF PROGRAMS, FAILURE TO STORE ANY INFORMATION OR OTHER CONTENT MAINTAINED OR TRANSMITTED BY OUR SERVICES, SERVICE INTERRUPTIONS, OR FOR THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES) ARISING OUT OF OR IN CONNECTION WITH THE RIDESWELL PLATFORM, OUR SERVICES OR THIS AGREEMENT (HOWEVER ARISING, INCLUDING NEGLIGENCE) EVEN IF WE OR OUR AGENTS OR REPRESENTATIVES KNOW OR HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IN NO EVENT WILL WE, OUR PARENT COMPANY, OUR SUBSIDIARIES OR OTHER AFFILIATES OR EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, MANAGERS, SHAREHOLDERS, MEMBERS, EMPLOYEES OR AGENTS BE LIABLE FOR ANY DAMAGES, DIRECT, INDIRECT, INCIDENTAL AND/OR CONSEQUENTIAL AND/OR PUNITIVE OR SPECIAL DAMAGES OR LOST PROFIT, ARISING OUT OF THE USE OF SERVICES AND/OR THE ACTS OR OMISSIONS OF ANY PARTICIPATING DRIVER OR USER INCLUDING, WITHOUT LIMITATION, PHYSICAL DAMAGES, BODILY INJURY, DEATH OR EMOTIONAL DISTRESS AND DISCOMFORT, DELAYS OR NON-PERFORMANCE.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, OUR LIABILITY, AND THE LIABILITY OF OUR PARENT COMPANY, SUBSIDIARIES, AND OTHER AFFILIATES AND OUR AND EACH OF THEIR RESPECTIVE OFFICERS, MANAGERS, SHAREHOLDERS, MEMBERS, DIRECTORS, EMPLOYEES, AND AGENTS, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO COMPENSATORY DAMAGES PROXIMATELY AND DIRECTLY CAUSED BY OUR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; AS SET FORTH ABOVE EACH RIDER AND PARTICIPATING DRIVER ACKNOWLEDGES THAT OTHER THAN THE LEGAL CAPACITY TO ENTER INTO THIS AGREEMENT THERE ARE NO ELIBILILITY REQUIREMENTS TO BECOME A RIDER OR A PARTICIPATING DRIVER (SEE SECTION 2 ABOVE) AND RIDESWELL DOES NOT CONDUCT ANY INVESTIGATION OR DUE DILIGENCE REGARDING RIDERS OR PARTICIPATING DRIVERS AND SUCH LACK OF INVESTIGATION OR DUE DILIGENCE DOES NOT CONSTITUTE NEGLIGENCE OR GROSS NEGLIGENCE AS EACH RIDER AND PARTICIPATING DRIVER ASSUMES THE RISKS AND THE RESPONSIBILITY FOR CONDUCTING THEIR OWN INVESTIGATION AND DILIGENCE REGARDING ALL MATTERS RELATING TO PARTICPATING DRIVERS AND RIDERS.
RideSwell has no responsibility whatsoever for the actions or omissions or conduct of Participating Drivers, drivers they dispatch, or other riders. RideSwell has no obligation to intervene in or be involved in any way in disputes that may arise between Participating Drivers, Riders, or third parties. Responsibility for the decisions you make regarding accepting transportation rest solely with You.
19.1 Nothing in this Agreement shall limit or exclude our liability for:
19.1.1 death or personal injury resulting from our gross negligence;
19.1.2 fraud or fraudulent misrepresentation; and
19.1.3 any other liability that cannot be excluded or limited by applicable law.
20.1 In the event that a Rider or Partipating Driver has a dispute with or a claim against one or more Riders or Participating Drivers, You hereby release RideSwell (and Our parent company, subsidiaries and other affiliates and our and each of their respective officers, directors, agents, managers, shareholders, members, employees and agents) from claims, demands and damages (including actual, consequential, special and punitive) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected to such disputes or to Your use of the RideSwell Platform or the Services.
20.2 You on behalf of your heirs, successors and assigns, expressly waive the benefits and rights of California Civil Code Section 1542, and any statute, rule, doctrine or common law principle of any jurisdiction of similar effect to Section 1542 of the California Civil Code which states as follows:
"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 known by him must have materially affected his settlement with the debtor."
20.3 You acknowledge that this waiver is a material inducement and consideration for RideWell’s willingness to enter into this Agreement and make the RideSwell Platform and Services available to you.
21. Applicable Law; Agreement to Arbitrate All Disputes and Legal Claims
21.1 The Services and all non-contractual obligations arising in any way whatsoever out of or in connection with this Agreement shall be governed by, construed and take effect in accordance with the laws of the state of California.
The parties agree that any dispute, claim or matter of difference between you and RideSwell arising out of or relating to the Booking Services or this Agreement shall be subject to binding arbitration pursuant to the terms and conditions of this Arbitration Agreement, and not any court action (other than a small claims court action to the extent the claim qualifies). The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. This Section 21.1 is referred to herein as the “Arbitration Agreement.”
21.1.1 THE PARTIES AGREE THAT EACH PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH PARTIES AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON'S OR PARTY'S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY'S INDIVIDUAL CLAIM(S).
21.1.2 Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association's ("AAA") rules and procedures (the "AAA Rules"), as modified by this Arbitration Agreement. If there is any inconsistency between the AAA Rules and this Arbitration Agreement, the terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of this Agreement as a court would, including without limitation, the limitation of liability provisions in Section 19. You may visit http://www.adr.org for information on the AAA and http://www.adr.org/fileacase for information on how to file a claim against RideSwell.
21.1.3 The arbitration shall be held in the county in which you reside or at another mutually agreed location. If the value of the relief sought is $10,000 or less, you or RideSwell may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on each party, but subject to the arbitrator's discretion to require an in-person hearing if the circumstances warrant. Attendance at any in-person hearing may be made by telephone by either or both parties unless the arbitrator requires otherwise.
21.1.4 The arbitrator will decide the substance of all claims in accordance with the laws of the state of California, without regard to its conflicts of laws rules, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different Rideswell Platform users, but is bound by rulings in prior arbitrations involving you to the extent required by applicable law.
21.1.5 Payment of all filing, administration, and arbitrator fees will be governed by the AAA's Rules. Each party will be responsible for all other fees it incurs in connection with the arbitration, including without limitation, all attorney fees.
21.1.6 All aspects of the arbitration proceeding, and any ruling, decision or award by the arbitrator, will be strictly confidential for the benefit of all parties..
21.1.7 In the event of a final adjudication by a court of competent jurisdiction that any term or provision of this Arbitration Agreement other than Section 21.2.2 is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. In the event of a final adjudication by a court of competent jurisdiction that any of the provisions of Section 21.2.2 are invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void and any dispute, claim or matter of difference arising out of or relating to the Services or this Agreement shall be adjudicated exclusively in the state and federal courts located in California. The remainder of this Agreement will continue to apply.
22.1 You agree not to use any technical, financial, strategic and other proprietary and confidential information relating to RideSwell's business, operations and properties ("Confidential Information") disclosed to You by RideSwell for Your own use or for any purpose other than as contemplated herein. You shall not disclose or permit disclosure of any Confidential Information to third parties. You agree to take all reasonable measures to protect the secrecy of and avoid disclosure or use of Confidential Information of RideSwell in order to prevent it from falling into the public domain. Notwithstanding the above, You shall not have liability to RideSwell with regard to any Confidential Information which You can prove was in the public domain at the time it was disclosed by RideSwell or has entered the public domain through no fault of Yours; was known to You, without restriction, at the time of disclosure, as demonstrated by files in existence at the time of disclosure; is disclosed with the prior written approval of RideSwell; becomes known to You, without restriction, from a source other than RideSwell without breach of this Agreement by You and otherwise not in violation of RideSwell's rights; or is disclosed pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided, however, that You shall provide prompt notice of such court order or requirement to RideSwell to enable RideSwell to seek a protective order or otherwise prevent or restrict such disclosure.
23. No Agency
23.1 You and RideSwell are independent contractors, and no agency, partnership, joint venture, employee-employer or franchisor-franchisee relationship is intended or created by this Agreement.
24. Notices, Complaints
24.1 Except as explicitly stated otherwise, any notices to RideSwell shall be given by certified mail, postage prepaid and return receipt requested to RideSwell, and any notices to You shall be provided to You through the RideSwell Platform or given to You via the email address You provide to RideSwell during the registration process. In such case, notice shall be deemed given 3 days after the date that the mailing as aforesaid. Notice shall be deemed given 24 hours after email is sent, unless the sending party is notified that the email address is invalid. Alternatively, We may give You notice by certified mail, postage prepaid and return receipt requested, to the address provided to RideSwell during the registration process. In such case, notice shall be deemed given 3 days after the date of mailing.
24.2 To resolve a complaint regarding the Services, You should first contact Our Customer Service Department through our support center. (https://www.rideswell.com/contact).
25.1 If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced. You agree that this Agreement and all incorporated agreements may be automatically assigned by RideSwell, in Our sole discretion in accordance with the "Notices" section of this Agreement. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. Our failure to act with respect to a breach by You or others does not waive Our right to act with respect to subsequent or similar breaches. This Agreement sets forth the entire understanding and agreement between the User and RideSwell with respect to the subject matter hereof. Sections referring to Services, Term and Termination, Proprietary Rights, Intellectual Property, Licenses, Liability Limit, Indemnity, and Resolution of Disputes shall survive any termination or expiration of this Agreement.