SpotOn.Pet Terms of Service
Updated: May 5, 2022
These Terms of Service constitute a legally binding agreement (the “Agreement”) between you and SpotOn.Pet, LLC, its parents, subsidiaries, representatives, affiliates, officers and directors (collectively, “SpotOn,” “we,” “us” or “our”) governing your use of the SpotOn application (the “SpotOn App”), website, and technology platform (collectively, the “SpotOn Platform”).
PLEASE BE ADVISED: THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOW CLAIMS BETWEEN YOU AND SPOTON CAN BE BROUGHT (SEE SECTION 17 BELOW). THESE PROVISIONS WILL, WITH LIMITED EXCEPTION, REQUIRE YOU TO SUBMIT CLAIMS YOU HAVE AGAINST SPOTON TO BINDING AND FINAL ARBITRATION ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS, GROUP OR REPRESENTATIVE ACTION OR PROCEEDING. AS A DRIVER OR DRIVER APPLICANT, YOU HAVE AN OPPORTUNITY TO OPT OUT OF ARBITRATION WITH RESPECT TO CERTAIN CLAIMS AS PROVIDED IN SECTION 17.
By entering into this Agreement, and/or by using or accessing the SpotOn Platform you expressly acknowledge that you understand this Agreement (including the dispute resolution and arbitration provisions in Section 17) and accept all of its terms. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT USE OR ACCESS THE SPOTON PLATFORM OR ANY OF THE SERVICES PROVIDED THROUGH THE SPOTON PLATFORM.
The SpotOn Platform provides a marketplace where, among other things, persons who seek transportation, with or without their pets, service animals and/or emotional support animals, to certain destinations (“Riders”) can be matched with transportation options to such destinations. One option for Riders is to request a ride from drivers who are driving to or through those destinations (“Drivers”). Drivers and Riders are collectively referred to herein as “Users,” and the driving services provided by Drivers to Riders shall be referred to herein as “Services.” As a User, you authorize SpotOn to match you with Drivers or Riders based on factors such as your location, the requested pickup location, the estimated time to pickup, your destination, User preferences and platform efficiency, and to cancel an existing match and/or rematch you with a Driver or Rider based on the same considerations. Any decision by a User to offer or accept Services is a decision made in such User’s sole discretion. Each Service provided by a Driver to a Rider shall constitute a separate agreement between such persons.
SpotOn reserves the right to modify the terms and conditions of this Agreement, and such modifications shall be binding on you and shall become effective upon posting and your use of the services after the modification of the Agreement.
Continued use of the SpotOn Platform or Services after any such changes shall constitute your consent to such changes.
Unless material changes are made to the arbitration provisions herein, you agree that modification of this Agreement does not create a renewed opportunity to opt out of arbitration (if applicable).
The SpotOn Platform may only be used by individuals who have the right and authority to enter into this Agreement and are fully able and competent to satisfy the terms, conditions, and obligations herein. The SpotOn Platform is not available to Users who have had their User account temporarily or permanently deactivated. You may not allow other persons to use your User account, and you agree that you are the sole authorized user of your account. To use the SpotOn Platform, each User shall create a User account. Each person may only create one User account, and SpotOn reserves the right to deactivate any additional or duplicate accounts. Your participation in certain SpotOn programs and use of certain SpotOn products or services may be subject to additional eligibility requirements as determined by SpotOn.
By becoming a User, you represent and warrant that you are at least 18 years old. Notwithstanding the foregoing, if you are the parent or legal guardian of a 16 or 17-year-old minor you may create a SpotOn account for such minor to use the SpotOn Platform subject to the following requirements and restrictions: (a) you ensure that the minor does not request or accept any Services unless accompanied by you or an authorized guardian, (b) you explain the terms of this Agreement to the minor, and (c) you expressly guarantee the minor’s acceptance of the terms of this Agreement.
By creating a SpotOn account for such minor, you hereby give permission and consent to the Agreement on the minor’s behalf, and you shall assume any and all responsibility and liability for the minor’s use of the SpotOn Platform as provided by the terms of this Agreement. You will be responsible for any breach of the above representations, warranties and/or this Agreement, and/or any attempt of the minor to disaffirm this Agreement. Furthermore, you hereby represent that you are fully authorized to execute this Agreement on behalf of yourself and all other parents or legal guardians of the minor rider.
As a Rider, you understand that request or use of Services may result in charges to you (“Charges”). Charges for Services include Fares and other applicable fees, tolls, surcharges, and taxes plus any tips to the Driver that you elect to pay. SpotOn has the authority and reserves the right to determine and modify pricing by quoting you a price for a specific ride at the time you make a request. Pricing may vary based on the type of service you request (e.g., economy, extra seats, luxury). You are responsible for reviewing the price quote within the SpotOn App and shall be responsible for all Charges incurred under your User account regardless of your awareness of such Charges or the amounts thereof.
Fares. There are two types of Fares, variable and quoted.
Variable Fares.
Variable fares consist of a base charge and incremental charges based on the duration and distance of your ride. For particularly short rides, minimum fares may apply. Please note that we may use GPS data from your Driver’s phone to calculate the distance traveled on your ride. We cannot guarantee the availability or accuracy of GPS data. If we lose signal, we will calculate time and distance using available data from your ride.
Quoted Fares. In some cases, SpotOn may quote you a Fare at the time of your request. The quote is subject to change until the ride request is confirmed. If during your ride you change your destination, make multiple stops, or attempt to abuse the SpotOn Platform, we may cancel the fare quote and charge you a variable fare based on the time and distance of your ride. SpotOn does not guarantee that the quoted fare price will be equal to a variable fare for the same ride. Quoted Fares may include the Fees and Other Charges below, as applicable.
Fees and Other Charges.
Service Fee. You may be charged a “Service Fee” for each ride as set forth on the applicable SpotOn Cities page.
Prime Time. At certain times, including times of high demand for Services (“Prime Time”), you acknowledge that Charges may increase substantially. For all rides with a variable fare, we will use reasonable efforts to inform you of any Prime Time increases in effect at the time of your request. For Quoted Fares we may factor in the Prime Time increases into the quoted price of the ride.
Cancellation Fee. After requesting a ride you may cancel it through the SpotOn App, but note that in certain cases a cancellation fee may apply. You may also be charged if you fail to show up after requesting a ride.
Damage Fee. If a Driver reports that you have materially damaged the Driver’s vehicle, you agree to pay a “Damage Fee” of up to $250 depending on the extent of the damage (as determined by SpotOn in its sole discretion), towards vehicle repair or cleaning. SpotOn reserves the right (but is not obligated) to verify or otherwise require documentation of damages prior to processing the Damage Fee.
Tolls. Riders are responsible for the cost of required tolls. If your driver has to pay a return toll to get home after your ride is over, that toll may be added to your upfront price. This makes sure your driver is fairly compensated for their time and effort. Any ride between New York City and another state may have a surcharge, which includes all tolls.We do not guarantee that the amount charged by SpotOn will match the toll charged to the Driver, if any.
Other Charges.
Other fees and surcharges may apply to your ride, including: actual or anticipated airport fees, state or local fees. In addition, where required by law SpotOn will collect applicable taxes.
Tips. Following a ride, you may elect to tip your Driver in cash or through the SpotOn Platform. You may also elect to set a default tip amount or percentage through the SpotOn App. Any tips will be provided entirely to the applicable Driver.
General.
Facilitation of Charges. All Charges are facilitated through a third-party payment processor. SpotOn may replace its third-party payment processor without notice to you. Charges shall only be made through the SpotOn Platform. With the exception of tips, cash payments are strictly prohibited. Your payment of Charges to SpotOn satisfies your payment obligation for your use of the SpotOn Platform and Services. Certain Charges may be collectively billed as a single purchase transaction to your selected payment method based on the payment frequency indicated in your settings. If you don’t recognize a transaction, then check your ride receipts and payment history.
No Refunds. All Charges are non-refundable. This no-refund policy shall apply at all times regardless of your decision to terminate usage of the SpotOn Platform, any disruption to the SpotOn Platform or Services, or any other reason whatsoever.
Coupons. You may receive coupons that you can apply toward payment of certain Charges upon completion of a Ride. Coupons are only valid for use on the SpotOn Platform, and are not transferable or redeemable for cash except as required by law. Coupons cannot be combined unless expressly provided otherwise, and if the cost of your ride exceeds the applicable credit or discount value we will charge your payment method on file for the outstanding cost of the Ride. For quoted or variable fares, SpotOn may deduct the amount attributable to the Service Fee, Tolls, or Other Charges before application of the coupon. Additional restrictions on coupons may apply as communicated to you in a relevant promotion.
Credit Card Authorization. Upon addition of a new payment method or each ride request, SpotOn may seek authorization of your selected payment method to verify the payment method, ensure the ride cost will be covered, and protect against unauthorized behavior. The authorization is not a charge, however, it may reduce your available credit by the authorization amount until your bank’s next processing cycle. Should the amount of our authorization exceed the total funds on deposit in your account, you may be subject to overdraft of NSF charges by the bank issuing your debit or prepaid card. We are not responsible for these charges and are unable to assist you in recovering them from your issuing bank.
If you are a Driver, you will receive payment for your provision of Services pursuant to the terms of the Independent Contractor Agreement which shall form part of this Agreement between you and SpotOn.
By entering into this Agreement or using the SpotOn Platform, you agree to receive communications from us or communications related to the SpotOn Platform at any of the phone numbers provided to SpotOn by you or on your behalf, including via e-mail, text message, calls, and push notifications. You agree that texts, calls or prerecorded messages may be generated by automatic telephone dialing systems.
Communications from SpotOn, its affiliated companies and/or Drivers, may include but are not limited to: operational communications concerning your User account or use of the SpotOn Platform or Services, updates concerning new and existing features on the SpotOn Platform, communications concerning marketing or promotions run by us or our third-party partners, and news concerning SpotOn and industry developments. If you change or deactivate the phone number you provided to SpotOn, you agree to update your account information to help prevent us from inadvertently communicating with anyone who acquires your old number. Standard text messaging charges applied by your cell phone carrier will apply to text messages we send.
IF YOU WISH TO OPT OUT OF PROMOTIONAL EMAILS, YOU CAN UNSUBSCRIBE FROM OUR PROMOTIONAL EMAIL LIST BY FOLLOWING THE UNSUBSCRIBE OPTIONS IN THE PROMOTIONAL EMAIL ITSELF. IF YOU WISH TO OPT OUT OF PROMOTIONAL CALLS OR TEXTS, YOU MAY TEXT US AT PICKUPS@SPOTON.PET. YOU ACKNOWLEDGE THAT YOU ARE NOT REQUIRED TO CONSENT TO RECEIVE PROMOTIONAL TEXTS OR CALLS AS A CONDITION OF USING THE SPOTON PLATFORM OR RELATED SERVICES. IF YOU WISH TO OPT OUT OF ALL TEXTS OR CALLS FROM SPOTON (INCLUDING OPERATIONAL OR TRANSACTIONAL TEXTS OR CALLS), YOU MAY TEXT US AT SERVICE@SPOTON.PET., HOWEVER YOU ACKNOWLEDGE THAT OPTING OUT OF RECEIVING ALL TEXTS MAY IMPACT YOUR USE OF THE SPOTON PLATFORM OR RELATED SERVICES.
Your Information is any information you provide, publish or post to or through the SpotOn Platform (including any profile information you provide) or send to other Users (including via in-application feedback, any email feature, or through any SpotOn-related Facebook, Twitter or other social media posting) (your “Information”). You consent to us using your Information to create a User account that will allow you to use the SpotOn Platform and participate in the Services. Our collection and use of personal information in connection with the SpotOn Platform and Services is as provided in SpotOn’s Privacy Policy located at www.SpotOn.com/privacy. You are solely responsible for your Information and your interactions with other members of the public, and we act only as a passive conduit for your online posting of your Information. You agree to provide and maintain accurate, current and complete information and that we and other members of the public may rely on your Information as accurate, current and complete. To enable SpotOn to use your Information for the purposes described in the Privacy Policy and this Agreement, you grant to us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, transferable, sub-licensable (through multiple tiers) right and license to exercise the copyright, publicity, and database rights you have in your Information, and to use, copy, perform, display and distribute such Information to prepare derivative works, or incorporate into other works, such Information, in any media now known or not currently known. SpotOn does not assert any ownership over your Information; rather, as between you and SpotOn, subject to the rights granted to us in this Agreement, you retain full ownership of all of your Information and any intellectual property rights or other proprietary rights associated with your Information.
SpotOn, at its sole discretion, may make available promotions, referral programs and loyalty programs with different features to any Users or prospective Users. These promotions and programs, unless made to you, shall have no bearing whatsoever on your Agreement or relationship with SpotOn. SpotOn reserves the right to withhold or deduct credits or benefits obtained through a promotion or program in the event that SpotOn determines or believes that the redemption of the promotion or receipt of the credit or benefit was in error, fraudulent, illegal, or in violation of the applicable promotion or program terms or this Agreement. SpotOn reserves the right to terminate, discontinue or cancel any promotions or programs at any time and in its sole discretion without notice to you.
With respect to your use of the SpotOn Platform and your participation in the Services, you agree that you will not:
By providing Services as a Driver on the SpotOn Platform, you represent, warrant, and agree that:
All intellectual property rights in the SpotOn Platform shall be owned by SpotOn absolutely and in their entirety. These rights include database rights, copyright, 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 SpotOn Platform are the property of their respective owners. You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information (“Submissions”) provided by you to us are non-confidential and shall become the sole property of SpotOn. SpotOn shall own 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.
SPOTON and other SpotOn logos, designs, graphics, icons, scripts and service names are registered trademarks, trademarks or trade dress of SpotOn in the United States and/or other countries (collectively, the “SpotOn Marks”). If you provide Services as a Driver, SpotOn grants to you, during the term of this Agreement, and subject to your compliance with the terms and conditions of this Agreement, a limited, revocable, non-exclusive license to display and use the SpotOn Marks solely on the SpotOn stickers/decals, SpotOn Amp, and any other SpotOn-branded items provided by SpotOn directly to you in connection with providing the Services (“License”). The License is non-transferable and non-assignable, and you shall not grant to any third party any right, permission, license or sublicense with respect to any of the rights granted hereunder without SpotOn’s prior written permission, which it may withhold in its sole discretion. The SpotOn logo (or any SpotOn Marks) may not be used in any manner that is likely to cause confusion, including but not limited to: use of a SpotOn Mark in a domain name or SpotOn referral code, or use of a SpotOn Mark as a social media handle or name, avatar, profile photo, icon, favicon, or banner. You may identify yourself as a Driver on the SpotOn Platform, but may not misidentify yourself as SpotOn, an employee of SpotOn, or a representative of SpotOn.
You acknowledge that SpotOn is the owner and licensor of the SpotOn Marks, including all goodwill associated therewith, and that your use of the SpotOn logo (or any SpotOn Marks) will confer no interest in or ownership of the SpotOn Marks in you but rather inures to the benefit of SpotOn. You agree to use the SpotOn logo strictly in accordance with SpotOn’s Brand Guidelines, as may be provided to you and revised from time to time, and to immediately cease any use that SpotOn determines to nonconforming or otherwise unacceptable.
You agree that you will not: (1) create any materials that use the SpotOn Marks or any derivatives of the SpotOn Marks as a trademark, service mark, trade name or trade dress, other than as expressly approved by SpotOn in writing; (2) use the SpotOn Marks in any way that tends to impair their validity as proprietary trademarks, service marks, trade names or trade dress, or use the SpotOn Marks other than in accordance with the terms, conditions and restrictions herein; (3) take any other action that would jeopardize or impair SpotOn’s rights as owner of the SpotOn Marks or the legality and/or enforceability of the SpotOn Marks, including, challenging or opposing SpotOn’s ownership in the SpotOn Marks; (4) apply for trademark registration or renewal of trademark registration of any of the SpotOn Marks, any derivative of the SpotOn Marks, any combination of the SpotOn Marks and any other name, or any trademark, service mark, trade name, symbol or word which is similar to the SpotOn Marks; (5) use the SpotOn Marks on or in connection with any product, service or activity that is in violation of any law, statute, government regulation or standard.
You agree you will not rent, lease, lend, sell, or otherwise redistribute the SpotOn driver amp, or manufacture, produce, print, sell, distribute, purchase, or display counterfeit/inauthentic SpotOn driver amps or other SpotOn Marks or (including but not limited to signage, stickers, apparel, or decals) from any source other than directly from SpotOn.
Violation of any provision of this License may result in immediate termination of the License, in SpotOn’s sole discretion, a takedown request sent to the appropriate ISP, or social media platform, and/or a Uniform Domain-Name Dispute-Resolution Policy Proceeding (or equivalent proceeding). If you create any materials (physical or digital) bearing the SpotOn Marks (in violation of this Agreement or otherwise), you agree that upon their creation SpotOn exclusively owns all right, title and interest in and to such materials, including any modifications to the SpotOn Marks or derivative works based on the SpotOn Marks or SpotOn copyrights.
You further agree to assign any interest or right you may have in such materials to SpotOn, and to provide information and execute any documents as reasonably requested by SpotOn to enable SpotOn to formalize such assignment.
SpotOn respects the intellectual property of others and expects Users to do the same. If you believe, in good faith, that any materials on the SpotOn Platform infringe upon your copyrights, please contact us at pickups@spoton.pet.
The following disclaimers are made on behalf of SpotOn, our affiliates, subsidiaries, parents, successors and assigns, and each of our respective officers, directors, employees, agents, and shareholders.
SpotOn does not provide transportation services, and SpotOn is not a transportation carrier. SpotOn is not a common carrier or public carrier. It is up to the Driver to decide whether or not to offer a ride to a Rider contacted through the SpotOn Platform, and it is up to the Rider to decide whether or not to accept a ride from any Driver contacted through the SpotOn Platform. We cannot ensure that a Driver or Rider will complete an arranged transportation service. We have no control over the quality or safety of the transportation that occurs as a result of the Services.
The SpotOn Platform is provided 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 SpotOn Platform and/or the Services, including the ability to provide or receive Services at any given location or time. SpotOn reserves the right, for example, to limit or eliminate access to the SpotOn Platform for Services in specific geographic areas and/or at specific times based on commercial viability, public health concerns, or changes in law. To the fullest extent permitted by law, we specifically disclaim any implied warranties of title, merchantability, fitness for a particular purpose and non-infringement.
We do not warrant that your use of the SpotOn Platform or Services will be accurate, complete, reliable, current, secure, uninterrupted, always available, or error-free, or will meet your requirements, that any defects in the SpotOn Platform will be corrected, or that the SpotOn Platform is free of viruses or other harmful components. We disclaim liability for, and no warranty is made with respect to, connectivity and availability of the SpotOn Platform or Services.
We cannot guarantee that each Rider or Driver is who he or she claims to be. Please use common sense when using the SpotOn Platform and Services, including looking at the photos of the Driver or Rider you have matched with to make sure it is the same individual you see in person. Please note that there are also risks of dealing with underage persons or people acting under false pretense, and we do not accept responsibility or liability for any content, communication or other use or access of the SpotOn Platform by persons under the age of 18 in violation of this Agreement. We encourage you to communicate directly with each potential Driver or Rider prior to engaging in an arranged transportation service.
SpotOn is not responsible for the conduct, whether online or offline, of any User of the SpotOn Platform or Services. You are solely responsible for your interactions with other Users. We do not procure insurance for, nor are we responsible for, personal belongings left in the car by Drivers or Riders. By using the SpotOn Platform and participating in the Services, you agree to accept such risks and agree that SpotOn is not responsible for the acts or omissions of Users on the SpotOn Platform or participating in the Services.
You are responsible for the use of your User account and SpotOn expressly disclaims any liability arising from the unauthorized use of your User account. Should you suspect that any unauthorized party may be using your User account or you suspect any other breach of security, you agree to notify us immediately.
It is possible for others to obtain information about you that you provide, publish or post to or through the SpotOn Platform (including any profile information you provide), send to other Users, or share during the Services, and to use such information to harass or harm you. We are not responsible for the use of any personal information that you disclose to other Users on the SpotOn Platform or through the Services. Please carefully select the type of information that you post on the SpotOn Platform or through the Services or release to others. We disclaim all liability, regardless of the form of action, for the acts or omissions of other Users (including unauthorized users, or “hackers”).
Opinions, advice, statements, offers, or other information or content concerning SpotOn or made available through the SpotOn Platform, 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. Under no circumstances will we be responsible for any loss or damage resulting from your reliance on information or other content posted by third parties, whether on the SpotOn Platform or otherwise. We reserve the right, but we have no obligation, to monitor the materials posted on the SpotOn Platform and remove any such material that in our sole opinion violates, or is alleged to violate, the law or this agreement or which might be offensive, illegal, or that might violate the rights, harm, or threaten the safety of Users or others.
Location data provided by the SpotOn Platform is for basic location purposes only and is not intended to be relied upon in situations where precise location information is needed or where erroneous, inaccurate or incomplete location data may lead to death, personal injury, property or environmental damage. Neither SpotOn, nor any of its content providers, guarantees the availability, accuracy, completeness, reliability, or timeliness of location data tracked or displayed by the SpotOn Platform. Any of your Information, including geolocational data, you upload, provide, or post on the SpotOn Platform may be accessible to SpotOn and certain Users of the SpotOn Platform.
SpotOn advises you to use the SpotOn Platform with a data plan with unlimited or very high data usage limits, and SpotOn shall not be responsible or liable for any fees, costs, or overage charges associated with any data plan you use to access the SpotOn Platform.
This paragraph applies to any version of the SpotOn Platform that you acquire from the Apple App Store. This Agreement is entered into between you and SpotOn. Apple, Inc. (“Apple”) is not a party to this Agreement and shall have no obligations with respect to the SpotOn Platform. SpotOn, not Apple, is solely responsible for the SpotOn Platform and the content thereof as set forth hereunder. However, Apple and Apple’s subsidiaries are third-party beneficiaries of this Agreement. Upon your acceptance of this Agreement, Apple 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. This Agreement incorporates by reference Apple’s Licensed Application End User License Agreement, for purposes of which, you are “the end-user.” In the event of a conflict in the terms of the Licensed Application End User License Agreement and this Agreement, the terms of this Agreement shall control.
As a Driver, you may be able to use Google Maps while providing Services on the Platform. Riders and Drivers may also use Google Maps while using the SpotOn App. In either case, you agree that Google may collect your location data when the SpotOn App is running in order to provide and improve Google’s services, that such data may also be shared with SpotOn in order to improve its operations, and that Google’s terms and privacy policy will apply to this usage.
SpotOn shall not be in breach of this Agreement nor liable for failure or delay in performing obligations under this Agreement if such failure or delay results from events, circumstances or causes beyond its reasonable control including (without limitation) natural disasters or acts of God; acts of terrorism; labor disputes or stoppages; war; government action; epidemic or pandemic; chemical or biological contamination; strikes, riots, or acts of domestic or international terrorism; quarantines; national or regional emergencies; or any other cause, whether similar in kind to the foregoing or otherwise, beyond the party’s reasonable control. All service dates under this Agreement affected by force majeure shall be tolled for the duration of such force majeure. The parties hereby agree, when feasible, not to cancel but reschedule the pertinent obligations as soon as practicable after the force majeure condition ceases to exist.
Certain jurisdictions may require additional disclosures to you. You can view any disclosures required by the local jurisdiction by contacting the New York City Taxi and Limousine Commission
You will defend, indemnify, and hold SpotOn including our affiliates, subsidiaries, parents, successors and assigns, and each of our respective officers, directors, employees, agents, or shareholders harmless from any claims, actions, suits, losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of your use of the SpotOn Platform and participation in the Services, including: (1) your breach of this Agreement or the documents it incorporates by reference; (2) your violation of any law or the rights of a third party, including, Drivers, Riders, other motorists, and pedestrians, as a result of your own interaction with such third party; (3) any allegation that any materials that you submit to us or transmit through the SpotOn Platform or to us infringe or otherwise violate the copyright, trademark, trade secret or other intellectual property or other rights of any third party; (4) your ownership, use or operation of a motor vehicle or passenger vehicle, including your provision of Services as a Driver; and/or (5) any other activities in connection with the Services. This indemnity shall be applicable without regard to the negligence of any party, including any indemnified person.
IN NO EVENT WILL SPOTON, INCLUDING OUR AFFILIATES, SUBSIDIARIES, PARENTS, SUCCESSORS AND ASSIGNS, AND EACH OF OUR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR SHAREHOLDERS (COLLECTIVELY “SPOTON” FOR PURPOSES OF THIS SECTION), BE LIABLE TO YOU FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, CONSEQUENTIAL, OR INDIRECT DAMAGES (INCLUDING DAMAGES FOR DELETION, CORRUPTION, LOSS OF DATA, LOSS OF PROGRAMS, FAILURE TO STORE ANY INFORMATION OR OTHER CONTENT MAINTAINED OR TRANSMITTED BY THE SPOTON PLATFORM, SERVICE INTERRUPTIONS, OR FOR THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES) ARISING OUT OF OR IN CONNECTION WITH THE SPOTON PLATFORM, 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. THE SPOTON PLATFORM MAY BE USED BY YOU TO REQUEST AND SCHEDULE TRANSPORTATION, GOODS, OR OTHER SERVICES WITH THIRD-PARTY PROVIDERS, BUT YOU AGREE THAT SPOTON HAS NO RESPONSIBILITY OR LIABILITY TO YOU RELATED TO ANY TRANSPORTATION, GOODS OR OTHER SERVICES PROVIDED TO YOU BY THIRD PARTY PROVIDERS OTHER THAN AS EXPRESSLY SET FORTH IN IN THIS AGREEMENT. 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.
This Agreement is effective upon your acceptance of this Agreement. This Agreement may be terminated: a) by User, without cause, upon seven (7) days’ prior written notice to SpotOn; or b) by either Party immediately, without notice, upon the other Party’s material breach of this Agreement, including but not limited to any breach of Section 9 or breach of Section 10(a) through (i) of this Agreement. In addition, SpotOn may terminate this Agreement or deactivate your User account immediately in the event: (1) you no longer qualify to provide Services or to operate the approved vehicle under applicable law, rule, permit, ordinance or regulation; (2) SpotOn has the good faith belief that such action is necessary to protect the safety of the SpotOn community or third parties, provided that in the event of a deactivation pursuant to (1)-(2) above, you will be given notice of the potential or actual deactivation and an opportunity to attempt to cure the issue to SpotOn’s reasonable satisfaction prior to SpotOn permanently terminating the Agreement. For all other breaches of this Agreement, you will be provided notice and an opportunity to cure the breach. If the breach is cured in a timely manner and to SpotOn’s satisfaction, this Agreement will not be permanently terminated. Sections 2, 6, 7 (with respect to the license), 11-12, 14-20 shall survive any termination or expiration of this Agreement.
(a) Agreement to Binding Arbitration Between You and SpotOn.
YOU AND SPOTON MUTUALLY AGREE TO WAIVE OUR RESPECTIVE RIGHTS TO RESOLUTION OF DISPUTES IN A COURT OF LAW BY A JUDGE OR JURY AND AGREE TO RESOLVE ANY DISPUTE BY ARBITRATION, as set forth below. This agreement to arbitrate (“Arbitration Agreement”) is governed by the Federal Arbitration Act (“FAA”); but if the FAA is inapplicable for any reason, then this Arbitration Agreement is governed by the laws of the State of Delaware, including Del. Code tit. 10, § 5701 et seq., without regard to choice of law principles. This Arbitration Agreement survives after the Agreement terminates or your relationship with SpotOn ends. ANY ARBITRATION UNDER THIS AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED. Except as expressly provided below, this Arbitration Agreement applies to all Claims (defined below) between you and SpotOn, including our affiliates, subsidiaries, parents, successors and assigns, and each of our respective officers, directors, employees, agents, or shareholders. This Arbitration Agreement also applies to claims between you and SpotOn’s service providers, including but not limited to background check providers and payment processors; and such service providers shall be considered intended third-party beneficiaries of this Arbitration Agreement.
Except as expressly provided below, ALL DISPUTES AND CLAIMS BETWEEN US (EACH A “CLAIM” AND COLLECTIVELY, “CLAIMS”) SHALL BE EXCLUSIVELY RESOLVED BY BINDING ARBITRATION SOLELY BETWEEN YOU AND SPOTON. These Claims include, but are not limited to, any dispute, claim or controversy, whether based on past, present, or future events, arising out of or relating to: this Agreement and prior versions thereof (including the breach, termination, enforcement, interpretation or validity thereof), the SpotOn Platform, the Services, SpotOn promotions, gift card, referrals or loyalty programs, any other goods or services made available through the SpotOn Platform, your relationship with SpotOn, the threatened or actual suspension, deactivation or termination of your User Account or this Agreement, background checks performed by or on SpotOn’s behalf, payments made by you or any payments made or allegedly owed to you, any promotions or offers made by SpotOn, any city, county, state or federal wage-hour law, trade secrets, unfair competition, compensation, breaks and rest periods, expense reimbursement, wrongful termination, discrimination, harassment, retaliation, fraud, defamation, emotional distress, breach of any express or implied contract or covenant, claims arising under federal or state consumer protection laws; claims arising under antitrust laws, claims arising under the Telephone Consumer Protection Act and Fair Credit Reporting Act; and claims arising under the Uniform Trade Secrets Act, Civil Rights Act of 1964, Americans With Disabilities Act, Age Discrimination in Employment Act, Older Workers Benefit Protection Act, Family Medical Leave Act, Fair Labor Standards Act, Employee Retirement Income Security Act of 1974 (except for individual claims for employee benefits under any benefit plan sponsored by SpotOn and covered by the Employee Retirement Income Security Act of 1974 or funded by insurance), and state statutes, if any, addressing the same or similar subject matters, and all other federal and state statutory and common law claims. All disputes concerning the arbitrability of a Claim (including disputes about the scope, applicability, enforceability, revocability or validity of the Arbitration Agreement) shall be decided by the arbitrator, except as expressly provided below.
BY AGREEING TO ARBITRATION, YOU UNDERSTAND THAT YOU AND SPOTON ARE WAIVING THE RIGHT TO SUE IN COURT OR HAVE A JURY TRIAL FOR ALL CLAIMS, EXCEPT AS EXPRESSLY OTHERWISE PROVIDED IN THIS ARBITRATION AGREEMENT. This Arbitration Agreement is intended to require arbitration of every claim or dispute that can lawfully be arbitrated, except for those claims and disputes which by the terms of this Arbitration Agreement are expressly excluded from the requirement to arbitrate.
(b) Prohibition of Class Actions and Non-Individualized Relief.
YOU UNDERSTAND AND AGREE THAT YOU AND SPOTON MAY EACH BRING CLAIMS IN ARBITRATION AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY AND NOT ON A CLASS, COLLECTIVE ACTION, OR REPRESENTATIVE BASIS (“CLASS ACTION WAIVER”). YOU UNDERSTAND AND AGREE THAT YOU AND SPOTON BOTH ARE WAIVING THE RIGHT TO PURSUE OR HAVE A DISPUTE RESOLVED AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, COLLECTIVE OR REPRESENTATIVE PROCEEDING.
The arbitrator shall have no authority to consider or resolve any Claim or issue any relief on any basis other than an individual basis. The arbitrator shall have no authority to consider or resolve any Claim or issue any relief on a class, collective, or representative basis. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claims.
Notwithstanding any other provision of this Agreement, the Arbitration Agreement or the AAA Rules, disputes regarding the interpretation, applicability, or enforceability of the Class Action Waiver may be resolved only by a court and not by an arbitrator. In any case in which: (1) the dispute is filed as a class, collective, or representative action and (2) there is a final judicial determination that the Class Action Waiver is unenforceable with respect to any Claim or any particular remedy for a Claim (such as a request for public injunctive relief), then that Claim or particular remedy (and only that Claim or particular remedy) shall be severed from any remaining claims and/or remedies and may be brought in a court of competent jurisdiction, but the Class Action Waiver shall be enforced in arbitration on an individual basis as to all other Claims or remedies to the fullest extent possible.
(c) Rules Governing the Arbitration.
Any arbitration conducted pursuant to this Arbitration Agreement shall be administered by the American Arbitration Association (“AAA”) pursuant to its Consumer Arbitration Rules that are in effect at the time the arbitration is initiated, as modified by the terms set forth in this Agreement. Copies of these rules can be obtained at the AAA’s website (www.adr.org) (the “AAA Rules”). Notwithstanding the foregoing, if requested by you and if proper based on the facts and circumstances of the Claims presented, the arbitrator shall have the discretion to select a different set of AAA Rules, but in no event shall the arbitrator consolidate more than one person’s Claims, or otherwise preside over any form of representative, collective, or class proceeding. The parties may select a different arbitration administrator upon mutual written agreement.
As part of the arbitration, both you and SpotOn will have the opportunity for reasonable discovery of non-privileged information that is relevant to the Claim. The arbitrator may award any individualized remedies that would be available in court. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claims. The arbitrator will provide a reasoned written statement of the arbitrator’s decision which shall explain the award given and the findings and conclusions on which the decision is based.
The arbitrator will decide the substance of all claims in accordance with applicable law, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different Riders or Drivers, but is bound by rulings in prior arbitrations involving the same Rider or Driver to the extent required by applicable law. The arbitrator’s award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof, provided that any award may be challenged in a court of competent jurisdiction.
(d) Arbitration Fees and Awards.
The payment of filing and arbitration fees will be governed by the relevant AAA Rules subject to the following modifications:
If SpotOn initiates arbitration under this Arbitration Agreement, SpotOn will pay all AAA filing and arbitration fees.
With respect to any Claims brought by SpotOn against a Driver, or for Claims brought by a Driver against SpotOn that: (A) are based on an alleged employment relationship between SpotOn and a Driver; (B) arise out of, or relate to, SpotOn’s actual deactivation of a Driver’s User account or a threat by SpotOn to deactivate a Driver’s User account; (C) arise out of, or relate to, SpotOn’s actual termination of a Driver’s Agreement with SpotOn under the termination provisions of this Agreement, or a threat by SpotOn to terminate a Driver’s Agreement; (D) arise out of, or relate to, Fares (as defined in this Agreement, including SpotOn’s commission or fees on the Fares), tips, or average hourly guarantees owed by SpotOn to Drivers for Services, other than disputes relating to referral bonuses, other SpotOn promotions, or consumer-type disputes, or (E) arise out of or relate to background checks that may be performed in connection with a user seeking to become a Driver (the subset of Claims in subsections (A)-(E) shall be collectively referred to as “Driver Claims”), SpotOn shall pay all costs unique to arbitration (as compared to the costs of adjudicating the same claims before a court), including the regular and customary arbitration fees and expenses (to the extent not paid by SpotOn pursuant to the fee provisions above). However, if you are the party initiating the Driver Claim, you shall be responsible for contributing up to an amount equal to the filing fee that would be paid to initiate the claim in the court of general jurisdiction in the state in which you provide Services to Riders, unless a lower fee amount would be owed by you pursuant to the AAA Rules, applicable law, or subsection (d)(1) above. Any dispute as to whether a cost is unique to arbitration shall be resolved by the arbitrator. For purposes of this Section 17(d)(2), the term “Driver” shall be deemed to include both Drivers and Driver applicants who have not been approved to drive.
Except as provided in Federal Rule of Civil Procedure 68 or any state equivalents, each party shall pay its own attorneys’ fees and pay any costs that are not unique to the arbitration (i.e., costs that each party would incur if the claim(s) were litigated in a court such as costs to subpoena witnesses and/or documents, take depositions and purchase deposition transcripts, copy documents, etc.).
At the end of any arbitration, the arbitrator may award reasonable fees and costs or any portion thereof to you if you prevail, to the extent authorized by applicable law.
Although under some laws SpotOn may have a right to an award of attorneys’ fees and non-filing fee expenses if it prevails in an arbitration, SpotOn agrees that it will not seek such an award unless you are represented by an attorney or the arbitrator has determined that the claim is frivolous or brought for an improper purpose (as measured by the standards of Federal Rule of Civil Procedure 11(b)).
If the arbitrator issues you an award that is greater than the value of SpotOn’s last written settlement offer made after you participated in good faith in the optional Negotiation process described in subsection (i) below, then SpotOn will pay you the amount of the award or U.S. $1,000, whichever is greater.
(e) Location and Manner of Arbitration.
Unless you and SpotOn agree otherwise, any arbitration hearings between SpotOn and a Rider will take place in the county of your billing address, and any arbitration hearings between SpotOn and a Driver will take place in the county in which the Driver provides Services. If AAA arbitration is unavailable in your county, the arbitration hearings will take place in the nearest available location for a AAA arbitration. Your right to a hearing will be determined by the AAA Rules.
(f) Exceptions to Arbitration.
This Arbitration Agreement shall not require arbitration of the following types of claims: (1) small claims actions brought on an individual basis that are within the scope of such small claims court’s jurisdiction; (2) claims for workers’ compensation, state disability insurance and unemployment insurance benefits; (3) claims that may not be subject to arbitration as a matter of generally applicable law not preempted by the FAA; and (4) individual claims of sexual assault or sexual harassment in connection with the use of the SpotOn Platform or Services. Where these claims are brought in a court of competent jurisdiction, SpotOn will not require arbitration of those claims. SpotOn’s agreement not to require arbitration of these claims does not waive the enforceability of any other provision of this Arbitration Agreement (including without limitation the waivers provided in Section 17(b)), or of the enforceability of this Arbitration Agreement as to any other dispute, claim, or controversy.
Nothing in this Arbitration Agreement prevents you from making a report to or filing a claim or charge with the Equal Employment Opportunity Commission, U.S. Department of Labor, Securities Exchange Commission, National Labor Relations Board (“NLRB”), or Office of Federal Contract Compliance Programs, or similar local, state or federal agency, and nothing in this Arbitration Agreement shall be deemed to preclude or excuse a party from bringing an administrative claim before any agency in order to fulfill the party’s obligation to exhaust administrative remedies before making a claim in arbitration However, should you bring an administrative claim, you may only seek or recover money damages of any type pursuant to this Arbitration Provision, and you knowingly and voluntarily waive the right to seek or recover money damages of any type pursuant to any administrative complaint, except for a complaint issued by the NLRB. Should you participate in an NLRB proceeding, you may only recover money damages if such recovery does not arise from or relate to a claim previously adjudicated under this Arbitration Provision or settled by you. Similarly, you may not recover money damages under this Arbitration Provision if you have already adjudicated such claim with the NLRB. Nothing in this Agreement or Arbitration Agreement prevents your participation in an investigation by a government agency of any report, claim or charge otherwise covered by this Arbitration Provision.
(g) Severability.
Except as otherwise provided in the severability provisions in subsections (b) and (c) above, in the event that any portion of this Arbitration Agreement is deemed illegal or unenforceable under applicable law not preempted by the FAA, such provision shall be severed and the remainder of the Arbitration Agreement shall be given full force and effect.
(h) Opting Out of Arbitration for Driver Claims
As a Driver or Driver applicant, you may opt out of the requirement to arbitrate Driver Claims defined in Section 17(e)(2) pursuant to the terms of this subsection if you have not previously agreed to an arbitration provision in SpotOn’s Terms of Service where you had the opportunity to opt out of the requirement to arbitrate. If you have previously agreed to such an arbitration provision, you may opt out of any revisions to your prior arbitration agreement made by this provision in the manner specified below, but opting out of this arbitration provision has no effect on any previous, other, or future arbitration agreements that you may have with SpotOn. If you have not previously agreed to such an arbitration provision and do not wish to be subject to this Arbitration Agreement with respect to Driver Claims, you may opt out of arbitration with respect to such Driver Claims by notifying SpotOn in writing of your desire to opt out of arbitration for such Driver Claims, which writing must be dated, signed and delivered by electronic mail to pickups@SpotOn.pet.
In order to be effective, (A) the writing must clearly indicate your intent to opt out of this Arbitration Agreement with respect to Driver Claims, (B) the writing must include the name, phone number, and email address associated with your User Account, and (C) the email containing the signed writing must be sent within 30 days of the date this Agreement is executed by you. Should you not opt out within the 30-day period, you and SpotOn shall be bound by the terms of this Arbitration Agreement in full.
Cases may be filed in the future involving Driver Claims. By agreeing to arbitration of Driver Claims with SpotOn under this Arbitration Agreement, you are agreeing in advance that you will bring all such claims, and seek all monetary and other relief, against SpotOn in an individual arbitration. You are also agreeing in advance that you will not participate in, or seek to recover monetary or other relief, for such claims in any court action or class, collective, and/or representative action. You have the right to consult with counsel of your choice concerning this Arbitration Agreement and you will not be subject to retaliation if you exercise your right to assert claims or opt-out of any Driver Claims under this Arbitration Agreement.
(i) Optional Pre-Arbitration Negotiation Process.
Before initiating any arbitration or proceeding, you and SpotOn may agree to first attempt to negotiate any dispute, claim or controversy between the parties informally for 30 days, unless this time period is mutually extended by you and SpotOn. A party who intends to seek negotiation under this subsection must first send to the other a written notice of the dispute (“Notice”). The Notice must (1) describe the nature and basis of the claim or dispute; and (2) set forth the specific relief sought. All offers, promises, conduct and statements, whether oral or written, made in the course of the negotiation by any of the parties, their agents, employees, and attorneys are confidential, privileged and inadmissible for any purpose, including as evidence of liability or for impeachment, in arbitration or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the negotiation.
You agree not to use any technical, financial, strategic and other proprietary and confidential information relating to SpotOn’s business, operations and properties, information about a User made available to you in connection with such User’s use of the Platform, which may include the User’s name, pick-up location, contact information and photo (“Confidential Information”) disclosed to you by SpotOn 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, and you agree not to store separate and outside of the SpotOn Platform any User Information obtained from the SpotOn Platform.
As a Driver, you understand that some of Rider Information you receive may be protected by federal and/or state confidentiality laws, such as the Health Information Portability and Accountability Act of 1996 (“HIPAA”), governing the privacy and security of protected (patient) health information.
In the event that you know a Rider, you should not disclose to anyone the identity of the Rider or the location that you picked up, or dropped off the Rider, as this could violate HIPAA. You understand that any violation of the Agreement’s confidentiality provisions may violate HIPAA or state confidentiality laws and could result in civil or criminal penalties against you. You agree to take all reasonable measures to protect the secrecy of and avoid disclosure or use of Confidential Information of SpotOn in order to prevent it from falling into the public domain.
Notwithstanding the above, you shall not have liability to SpotOn with regard to any Confidential Information which you can prove: was in the public domain at the time it was disclosed by SpotOn 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 SpotOn; becomes known to you, without restriction, from a source other than SpotOn without breach of this Agreement by you and otherwise not in violation of SpotOn’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 SpotOn to enable SpotOn to seek a protective order or otherwise prevent or restrict such disclosure.
As a Driver on the SpotOn Platform, you acknowledge and agree that you and SpotOn are in a direct business relationship, and the relationship between the parties under this Agreement is solely that of independent contracting parties. You and SpotOn expressly agree that (1) this is not an employment agreement and does not create an employment relationship between you and SpotOn; and (2) no joint venture, franchisor-franchisee, partnership, or agency relationship is intended or created by this Agreement. You have no authority to bind SpotOn, and you undertake not to hold yourself out as an employee, agent or authorized representative of SpotOn.
SpotOn does not, and shall not be deemed to, direct or control you generally or in your performance under this Agreement specifically, including in connection with your provision of Services, your acts or omissions, or your operation and maintenance of your vehicle. You retain the sole right to determine when, where, and for how long you will utilize the SpotOn Platform.
SpotOn does not, and shall not be deemed to, unilaterally prescribe specific dates, times of day, or any minimum number of hours for you to utilize the SpotOn Platform. You retain the option to accept or to decline or ignore a Rider’s request for Services via the SpotOn Platform, or to cancel an accepted request for Services via the SpotOn Platform, subject to SpotOn’s then-current cancellation policies. SpotOn does not, and shall not be deemed to, require you to accept any specific request for Services as a condition of maintaining access to the platform.
With the exception of any signage required by law or permit/license rules or requirements, SpotOn shall have no right to require you to: (a) display SpotOn’s names, logos or colors on your vehicle(s); or (b) wear a uniform or any other clothing displaying SpotOn’s names, logos or colors. You acknowledge and agree that you have complete discretion to provide Services or otherwise engage in any other business or employment activities, including but not limited to providing services similar to the Services to other companies, and that SpotOn does not, and shall not be deemed to, restrict you from engaging in any such activity.
Except as provided in Section 17, this Agreement shall be governed by the laws of the State of New York without regard to choice of law principles. This choice of law provision is only intended to specify the use of New York law to interpret this Agreement and is not intended to create any other substantive right to non-New Yorkers to assert claims under New York law whether by statute, common law, or otherwise. If any provision of this Agreement is or becomes invalid or non- binding, the parties shall remain bound by all other provisions of this Agreement. In that event, the parties shall replace the invalid or non-binding provision with provisions that are valid and binding and that have, to the greatest extent possible, a similar effect as the invalid or non-binding provision, given the contents and purpose of this Agreement. You agree that this Agreement and all incorporated agreements may be automatically assigned by SpotOn, in our sole discretion by providing notice to you. Except as explicitly stated otherwise, any notices to SpotOn shall be given by certified mail, postage prepaid and return receipt requested to SpotOn.Pet, LLC, 81 Prospect Street, Brooklyn, NT 11201. Any notices to you shall be provided to you through the SpotOn Platform or given to you via the email address or physical you provide to SpotOn during the registration process. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. The words “include”, “includes” and “including” are deemed to be followed by the words “without limitation”. A party’s failure to act with respect to a breach by the other party does not constitute a waiver of the party’s right to act with respect to subsequent or similar breaches. This Agreement sets forth the entire understanding and agreement between you and SpotOn with respect to the subject matter hereof and supersedes all previous understandings and agreements between the parties, whether oral or written.
If you have any questions regarding the SpotOn Platform or Services, please contact us at pickups@spoton.pet
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