A. Introduction & General Terms
B. Introduction & General Terms
C. Owner Related Terms
D. Additional Policies; Insurance Terms
E. MPH Platform Terms
F. Other Legal Terms [Note: Insert internal page links to the section]
A. INTRODUCTION & GENERAL TERMS
1. Introduction. MPH Club Corp. (referred to as “MPH”, “us”, “we” or “Company”) provides Users (as defined below) with access to an online peer to peer vehicle sharing marketplace platform that connects vehicle owners with persons wanting to rent a vehicle (the “MPH Platform” or the “MPH Club”). The MPH Platform is accessible to Users via the [insert website address] website (such website together with other MPH related websites, the “Site”) and the MPH mobile application known as [insert app name] (as further defined below, the “App”), and makes various Content and other Services (each defined below) available to Users.
4. USE AT YOUR OWN RISK. The MPH Platform is a software based tool that FACILITATES PEER TO PEER CAR SHARING BY CONNECTING VEHICLE OWNERS WITH PERSONS WANTING TO RENT A VEHICLE. WE ALSO FACILITATE THE PROVISION OF CERTAIN OPTIONAL SERVICES RELEVANT TO RENTED VEHICLES, SUCH AS facilitating THIRD-PARTY INSURANCE COVERAGE FOR RENTED VEHICLES. MPH DOES NOT ITSELF OWN THE VEHICLES AVAILABLE FOR RENT VIA THE MPH PLATFORM [Note to MPH: We understand that you may want to rent out some of your own vehicles? Will these be owned by you, or by an affiliate entity (i.e. are the MPH Club Corp owned or another MPH entity? Based on our response, we may need to slightly restructure this disclaimer and other terms based on how the vehicles are owned.] AND DOES NOT ITSELF REVIEW, TEST OR ASSESS THOSE VEHICLES TO DETERMINE OR CONFIRM SAFETY, ROAD WORTHINESS, GENERAL ADEQUACY FOR A PARTICULAR PURPOSE, OR AVAILABILITY ON AN UNINTERRUPTED, SECURE OR ERROR-FREE BASIS. LIKEWISE MPH IS NOT ITSELF AN INSURANCE PROVIDER AND IS NOT RESPONSIBLE FOR A USER’S DECISION TO OBTAIN (OR NOT OBTAIN) INSURANCE COVERAGE FROM A PARTICULAR INSURANCE PROVIDER, OR FOR AN INSURANCE PROVIDER’S COVERAGE DETERMINATIONS, INCLUDING AN INSURANCE PROVIDER’S DECISION TO ACCEPT OR DENY A PARTICULAR CLAIM. WITHOUT LIMITING THE FOREGOING, MPH IS NOT RESPONSIBLE FOR (AND HEREBY DISCLAIMS ALL LIABILITY FOR) ANY OF THE ACTS OR OMISSIONS OF ANY OF USERS OF THE MPH PLATFORM, THE MANUFACTURE OR PERFORMANCE OF A PARTICULAR VEHICLE OR ANY OPTIONAL EXTRAS, OR ANY THIRD PARTY PROVIDER OF SERVICES (E.G. INSURANCE OR IN-VEHICLE GPS OR OTHER SYSTEMS). YOU ARE SOLELY RESPONSIBLE AND LIABLE FOR YOUR USE OF THE SERVICES, INCLUDING FOR DETERMINING THE MANNER AND EXTENT TO WHICH YOU ACCESS AND USE THE SERVICES. FOR INSTANCE, YOU ARE SOLELY RESPONSIBLE AND LIABLE FOR YOUR DECISION TO RENT A PARTICULAR VEHICLE THROUGH THE MPH PLATFORM, OR TO MAKE YOUR VEHICLE AVAILABLE FOR RENT BY OTHERS VIA THE MPH PLATFORM, EVENTS WHICH HAPPEN WHILE UTILIZING A RENTED VEHICLE, AND YOUR DECISION TO OBTAIN (OR NOT OBTAIN) INSURANCE COVERAGE FOR A PARTICULAR VEHICLE. MPH DOES NOT ENDORSE ANY VEHICLE, USER, OR A USER’S BACKGROUND, OR COMMIT TO UNDERTAKE ANY SPECIFIC SCREENING PROCESS WITH RESPECT TO THE FOREGOING. YOU ACKNOWLEDGE AND AGREE THAT WE AND OUR AFFILIATES WILL NOT BE HELD LIABLE FOR DAMAGE OR INJURY RESULTING FROM ACCESS OR THE IMPOSSIBILITY OF ACCESS OR FROM THE USE OR IMPOSSIBILITY OF USE OF ANY OF THE SERVICES. [Note: We have provided this disclaimer in addition to other standard disclaimers. As noted in our engagement letter, we are not providing any specific regulatory advice, advice related to industry laws or regulations or state-specific laws or regulations. This is simply a potential way to limit some risk and put user’s on notice (and its effect may be impacted by regulations, etc.)]
5. Definitions. The following terms shall have the following meanings for purposes of this Agreement. Capitalized terms not defined in this Section are defined elsewhere in the Agreement.
a. “Affiliates” means MPH’s owners, officers, directors, affiliated companies, suppliers, partners, sponsors, and agents and representatives, and includes (without limitation) all parties involved in creating, producing, and/or delivering the MPH Platform, the Site, the App, the Content and any of our other Services (including Apple and Google). [Note: Consider whether you want to treat the Insurance provider as an Affiliate.]
b. “App” means the software application currently known as “[ ]” [Note: Confirm name of App.] that may be downloaded, installed or is otherwise accessible on a User’s computer or mobile device via the Site, the Apple App Store, the Google Play Store, or other similar platforms. that may be downloaded, installed or is otherwise accessible on a User’s computer or mobile device via the Site, the Apple App Store, the Google Play Store, or other similar platforms.
c. “Content,” means any content, material, information, data, instructions, media, article, post, communications, software, photos, video, graphics, music, sounds, and other material and services that can be viewed or otherwise accessed by Users on or through the MPH Platform or other Services but excludes User Material.
d. “Services” means (i) the MPH Platform, (ii) the Site, (iii) the App, (iv) all Content, (v) the Insurance Services (as defined below); (vi) any other specific service or offering that may be provided by MPH via the MPH Platform, the Site or the App, (vii) any specific service or offering that may be mutually agreed upon by a User and MPH in a rental agreement or other written agreement, (viii) any support services and related technologies, software and/or APIs that may be provided by MPH in its sole discretion for facilitating, maintaining and monitoring your use of the foregoing, and (ix) any other services or offerings that MPH may provide from time to time via the MPH Platform. [Note: We assume you will not be providing rental accessories, such as gps, car seats, etc. Or will you allow owners to provide them and upcharge for the rental?]
f. “User” or “you” or “your” (and similar terms) means any person or entity that visits, views, uses or accesses any portion of the MPH Platform, the Site, the App or any of the other Services. Users include, without limitation, both Renters (as defined below) and Owners (as defined below).
g. “User Material” means any content, material, information (including financial information), data, instructions, media, article, post, communications, software, photos, video, graphics, music, sounds, and other material that a User may import, upload or otherwise provide to the Service in connection with a User’s use of the Service.
B. RENTER RELATED TERMS
1. Eligibility. Users that access and utilize the Services for purposes of renting a vehicle are referred to herein as “Renters”. To become a Renter, Users must sign up for an MPH Platform account and must provide all required background information. MPH will then review your initial eligibility information and will also perform certain background checks in order to determine whether to accept or deny your application. If accepted, you will thereafter be required to provide additional eligibility information on a rolling basis and MPH may continue to periodically perform additional background checks to confirm your continued eligibility. However, please note that MPH reserves the right to accept or deny potential Renters in its sole discretion (subject to compliance with applicable law), and MPH further reserves the right to change, modify or expand its eligibility requirements at any time, including to make the eligibility requirements more stringent.
a. Age. All Renters must be 21 years old or older. If renting a “Premium Vehicle”, Renters must be 25 years old or older. International Renters must also be 25 years old or older
b. Record. Prospective Renters must provide copies of their up to date Motor Vehicle Records with their initial application. In order to be accepted to the MPH Club, Renters must have no major driving violations or alcohol/drug-related incidents in the past 10 years, and no more than two minor driving violations or accidents combined in the past 5 years. Additionally, Renters under age 25 must have no violations or accidents in the last 3 years.
c. License. Regardless of age, all Renters must have been licensed for at least the 2 years immediately preceding their application to the MPH Platform. Additionally, all Renters must hold a current, valid (non-temporary) driver’s license and present that license to their Owner (as defined below) when picking up each vehicle.
d. Background Check. Renters must pass all third-party verification checks for KYC and AML compliance.
e. Premium Vehicles. We define “Premium Vehicles” as vehicles with an actual new MSRP cash value over $150,000. Without limiting the requirements set forth above, certain more stringent requirements apply to rentals of Premium Vehicles. Among other things, in order to rent a Premium Vehicle, the Renter must: (i) be 25 years old or older; (ii) provide full insurance coverage for the vehicle during the course of their rental period; (iii) have been licensed for at least the immediately preceding 3 years; (iv) successfully complete a separate electronic signature rental agreement, and (v) meet any additional eligibility or rental requirements that are determined by MPH in its discretion.
f. Monitoring; Report Authorization. Prior to acceptance by MPH and thereafter on an ongoing basis, MPH may require Renters to provide any documents, records or other evidence necessary to establish the Renter’s eligibility and compliance with MPH’s then applicable eligibility requirements. You promise to promptly update the information you have provided to MPH in the event of any changes to your driving record, contact information, or background. Additionally, MPH may itself periodically monitor the driving records and other background information of its Renters to ensure that Renters continue to qualify for membership under MPH’s then current eligibility requirements. In particular, Renter reviews and additional monitoring can be initiated by a number of triggering events, which may include: (i) external notification by the State DMV (if supported by the driver license issuer state); (ii) external notification by other Users, or (iii) internal notification by the MPH Platform based on parameters and functionality that we may establish and maintain from time to time and in our sole discretion. MPH may in its sole discretion use third party services to verify the information you provide to us and to obtain additional related information and corrections where applicable, and you hereby authorize MPH to request, receive, use, and store such information. In furtherance of the foregoing, you hereby provide MPH with written instructions and authorization in accordance with the Fair Credit Reporting Act, applicable consumer reporting laws, or any similar laws to obtain your personal and/or business auto insurance score, credit report and/or conduct a background check, including a criminal background check where permissible under applicable law.
2. General. As a Renter, you represent and warrant that you are a legally licensed driver and will provide proof of a current, valid driver’s license to each Owner of a vehicle you rent via the MPH Platform. You further represent and warrant that you will properly use and maintain the vehicle and will take all reasonable measures to return each vehicle on time and in essentially the same condition as received. In connection with your use of or access to the Services you may not, and you agree that you will not, nor advocate, encourage, request, or assist any third party to, (i) violate any law, (ii) dilute, tarnish, or otherwise harm the MPH brand in any way, (iii) provide or submit any false information to MPH, our service providers or any other User, (iv) fail to honor your commitments hereunder or under any other applicable MPH policy or agreement, (v) harm or threaten to harm any other User, (vi) use the Services for your own unrelated purposes, or (vii) interfere with the operation of the Services.
3. Payments Our payment policies and procedures, including the various fees and costs you may incur when using the Services, are set forth in our [Fee Policy] [insert link to pricing page or pricing policy or state how this is determined]. You are responsible for paying all fees and costs incurred by you in connection with your use of the Services. In addition to vehicle rental costs, you are also responsible for all of the costs relating to any tolls, citations and fines (e.g. tolls, parking tickets, towing fines) incurred during the reservation period. A valid credit card will be required for all payments due in connection with your use of the Services, and all rental fees will be billed in advance in accordance with the applicable Fee Policy. All fees will be exclusive of all taxes, levies, or duties imposed by taxing authorities, and you will be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes based on MPH’s income or an Owner’s income. You agree to pay for any taxes that might be applicable to your use of such paid Services. You grant us the right to charge your credit card (or otherwise facilitate payment) with the payment information you provide us. You will reimburse us for any fees that we may be charged related to declined payments, and you will keep us informed of all changes to your billing information.
4. Other Terms. See [insert link and policy name for each additional Renter specific policy] for additional terms and conditions applicable to Renters. Note: We have included some basic requirements and terms for Renters based on the information you provided but we assume you will have more detailed policies, provisions and requirements applicable to Renters addressing things such as accidents/damage/break-down policy, procedures for pick-up/drop-off, wear and tear responsibility, etc. We recommend a separate policy page.]
C. OWNER RELATED TERMS
1. Eligibility. Users that access and utilize the Services for purposes of making a vehicle available for rent by Renters are referred to herein as “Owners”. For an Owner and his/her/its vehicle to be accepted into the MPH Club, the Owner must sign up for an MPH Platform account and must provide all required background information (both regarding him/herself and his/her vehicle). MPH will then review your initial eligibility information and will also perform certain background checks in order to determine whether to accept or deny your application. If accepted, you will thereafter be required to provide additional eligibility information on a rolling basis and MPH may continue to periodically perform additional background checks to confirm your continued eligibility. However, please note that MPH reserves the right to accept or deny potential Owners and/or vehicles in its sole discretion (subject to compliance with applicable law), and MPH further reserves the right to change, modify or expand its eligibility requirements at any time, including to make the eligibility requirements more stringent.
a. General Specifications. All vehicles must be private passenger vehicles with at least 4 wheels and 10 or fewer seats. Vehicles must not have experienced any prior damage or been involved in any type of accident, and Owners must provide photos showing 5 or more sides of the vehicle to confirm the absence of prior or existing damage. All photos must meet any requirements of MPH. Vehicles must not have previously been issued a salvage/repair title.
b. Registration. All vehicles must be registered in accordance with applicable law.
c. Maintenance. All vehicles must be well maintained and serviced at all times, at least consistent with any manufacturer requirements or guidelines. Upon initial application to the MPH Club and thereafter on an ongoing basis, Owners may be required to submit documented proof of any and all service performed on the vehicle.
d. Vehicle Age & Mileage. All vehicles must not be older than 4 years old and must have fewer than 70,000 miles. The Owner must immediately cease renting the vehicle and notify MPH if this mileage or age limit is exceeded.
e. No Alterations. Vehicles accepted into the MPH Club must not have been altered in the aftermarket for greater performance (e.g., engine alterations or enhancements) and must not have had their physical appearance modified in a manner that materially changes the performance or purpose of the vehicle, in each case as determined by MPH in its sole discretion.
f. Premium Vehicles. We do not cap the cash value of vehicles allowed to participate in the MPH Club. Any vehicle with an actual new MSRP cash value over $150,000 is considered a “Premium Vehicle”.
g. Documentation & Monitoring; Authorization. Prior to acceptance by MPH and thereafter on an ongoing basis, MPH may require Owners to provide any documents, records or other evidence necessary to establish personal eligibility, vehicle eligibility and compliance with the foregoing requirements. You promise to promptly update the information you have provided to MPH in the event of any changes to your driving record, contact information, or background. Additionally, MPH may itself periodically monitor publicly available records applicable to Owners and vehicles in order to ensure that Owners and vehicles continue to qualify for eligibility under our then current eligibility requirements. MPH may in its sole discretion use third party services to verify the information you provide to us and to obtain additional related information and corrections where applicable, and you hereby authorize MPH to request, receive, use, and store such information. In furtherance of the foregoing, you hereby provide MPH with written instructions and authorization in accordance with the Fair Credit Reporting Act, applicable consumer reporting laws, or any similar laws to obtain your personal and/or business auto insurance score, credit report and/or conduct a background check, including a criminal background check where permissible under applicable law.
2. General. As an Owner, you represent and warrant that you will provide a safe and legally registered and insured vehicle, with a clean (non-salvage/branded/written off) title, in good mechanical condition, on time to the applicable Renter. In connection with your use of or access to the Services you may not, and you agree that you will not, nor advocate, encourage, request, or assist any third party to, (i) violate any law, (ii) dilute, tarnish, or otherwise harm the MPH brand in any way, (iii) provide or submit any false information to MPH, our service providers or any other User, (iv) fail to honor your commitments hereunder or under any other applicable MPH policy or agreement, (v) harm or threaten to harm any other User, (vi) use the Services for your own unrelated purposes, or (vii) interfere with the operation of the Services.
3. Payments/Billing. Our payment policies and procedures, including the various fees and costs applicable to use of the Services and commissions due to MPH, are set forth in our [Fee Policy] [insert link to pricing page or pricing policy or state how this is determined]. You are responsible for paying all applicable fees and costs incurred by you in connection with your use of the Services (if any). Owners may set the rental fee for your vehicle in a manner consistent with MPH’s policies and procedures [Note: Name and link to policy if any.]. MPH and its service providers will facilitate the processing of the vehicle rental fee on your behalf, which means processing the Renter’s credit card, retaining a commission as set forth in our then-applicable Fee Policy, and remitting the remaining funds to you as provided in this section and our Fee Policy. MPH will remit payments due to you hereunder no later than thirty (30) days after the end of each calendar month in which the applicable fees are received. Payment shall be in the form you select when you register with the MPH Platform or subsequently update as permitted by the MPH Platform. Payments shall only be made in those months in which the amount due to you totals at least $100.00. Unpaid amounts due shall accrue until the next month in which the amount due is at least $100.00. MPH reserves the right to withhold payment or charge back to your account any amounts otherwise due to us (whether under this Agreement or any other agreements between us), or any amounts due as a result of a breach of this Agreement by you, pending MPH’s reasonable investigation of such breach. To ensure proper payment, you are solely responsible for providing and maintaining accurate contact and payment information associated with your account, which includes, without limitation, applicable tax information. If we believe that we are obligated to make or withhold tax-related payments in connection with fees due to you, and you do not provide all required tax information to us after we have requested it, we may withhold your payments until you provide this information or otherwise satisfy us that you are not a person or entity for whom we are required to withhold tax payments or on whose behalf we are required to make tax payments. Any bank fees related to returned or canceled checks due to a contact or payment information error or omission may be deducted from the newly issued payment. You agree to pay all applicable taxes or charges imposed by any government entity in connection with your participation in the MPH Platform. If you dispute any payment made hereunder, you must notify MPH in writing within thirty (30) days of any such payment; failure to so notify MPH shall result in the waiver by you of any claim relating to any such disputed payment. Payment shall be calculated solely based on records maintained by MPH. No other measurements or statistics of any kind shall be accepted by MPH or have any effect under this Agreement. Note: We have imported your language here. Is this the right place for it? Or do you want to push most of this to the separate payment policies and procedures?]
4. Other Terms. See [insert link and policy name] for additional terms and conditions applicable to Owners. [Note: We have include some basic requirements and terms for Owners but we assume you will have more detailed owner policies, provisions and requirements applicable to Owners addressing things such as accident responsibility, procedures for pick-up/drop-off, additional maintenance requirements, etc.]
D. ADDITIONAL POLICIES; INSURANCE TERMS
[Policy Name] [Note to MPH: Consider whether you want to specifically reference or link to any particularly unique/important policies here, such as prohibited use policy, car cleaning policy, pet policy, a roadside assistance policy, separate insurance policy, payment/pricing policy, reservation policy, roadside assistance policy, policy regarding mechanics of picking up and dropping, etc.]
3. Disclaimer. MPH is not responsible for any insurance policies or matters, including if you directly contract with one of our third party insurance providers that may be available on the MPH Platform. Your rights and obligations with regard to any insurance policy is separately governed by any agreement or policy that you obtain or have. MPH does not guarantee the results of any claim submitted for coverage under any insurance policy. [Note: When you offer insurance you will need to revise this section as applicable.]
E. MPH Platform Terms
2. Data and Information from Third Party Sites. Users may be required or allowed to link to a Google account or other third party account or site to provide, submit or upload User Material or other information to the Services. You expressly acknowledge and agree and grant us all necessary rights and licenses to access your User Material and other information that may be hosted on third party sites, integrate into third party APIs to access and transmit your User Material and other information to our Services, store such User Material and other information and process and use such User Material and information via the Services. You are solely responsible for complying with all third party agreements, terms of service or other applicable party and ensuring that you have the right to transmit User Material and other applicable information to the Services and permit the Services to process the User Material and other information. [Note: Any third party integrations required or contemplated (e.g. Google Accounts, FB)?]
4. Equipment and Requirements. User acknowledges that certain portions or features of the Services may not be fully accessible or functional without: (i) a working computer or mobile device; a working Internet connection; (iii) a user account and/or an access/activation code or payment for any Services that require payment; and (iv) other system elements, specifications, technology and/or equipment that may be specified by MPH from time to time. It is User’s responsibility to ensure that User has all required system elements. User understands and agrees that temporary interruptions of the Services may occur as normal events. MPH may use third party providers to store, manage, and authenticate accounts and content, and to provide the necessary hardware, software, networking, storage, and related technology required to run the Services. We are not responsible for possible issues caused by third party faults or discontinued services. MPH does not guarantee or warrant that any Content or User Material that you save, store or access through the Services will not be subject to inadvertent damage, corruption, or loss. You are encouraged to backup the files that you store or access on the MPH Platform, the Site and/or the App. While we take data security and privacy seriously, you understand and agreed that the technical processing and transmission of the Services, including Content and User Material, may be transferred unencrypted and involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
6. User Requirements.
a. Accuracy; Security. User agrees to: (i) provide true, accurate, current and complete information about User (including, as applicable, User’s vehicle, contact information, and billing information) as prompted by MPH’s forms and in any other related document or agreement; (ii) to maintain and update User’s information and User’s vehicle information (if applicable) to keep it true, accurate, current, and complete. User acknowledges that, if any information provided by User is untrue, inaccurate, not current, or incomplete, MPH reserves the right to terminate User’s use of the Services and withdraw any offer or agreement. You agree to keep your account information, including your login and password, secure and not to share it with any third party. You are solely responsible for the maintaining the security of your account, and you acknowledge and agree that you will be solely responsible for all activity occurring through your account.
b. Restrictions. While using Services, you agree that you will not: (i) violate any laws, third party rights or our policies; (ii) use our Services or submit any of our forms if you are not able to form legally binding contracts or are temporarily or indefinitely suspended from using our Services; (iii) manipulate the Site, the App, the other Services, email responses or interfere with any other users use of the Services; (iv) provide false, inaccurate, misleading, defamatory, or libelous information or content; (v) spoof or create any emails, content, correspondence or other information from us, including fake or fraudulent acceptances or offers; (vi) create any competitive service or feature (or otherwise establish a competitive business) based on, in whole or in part, any content on the MPH Platform, the Site or the App or any of our business ideas, (vii) distribute viruses or any other technologies that may harm Company, or the interests or property of our other users; (viii) copy, modify, or distribute rights or content from the MPH Platform, the Site or the App or commercialize any of our Services or any information or software provided with such Services; (ix) harvest or otherwise collect information about our users, including email addresses, without their consent; (x) use the Services to gain unauthorized access to MPH’s network(s) or server(s); (xi) interfere with any User’s use and enjoyment of the MPH Platform, the Site, the App or other Services; (xii) violate the intellectual property rights, including but not limited to, copyrights, trademark rights, trade secrets or patents of any person or entity. This description of prohibited conduct is not intended to be exhaustive, and MPH has sole discretion to determine what constitutes prohibited conduct for Users. Users who violate system or network security may incur criminal or civil liability.
c. Remote Monitoring. MPH shall have the right and ability to monitor use of the Services remotely and/or electronically to verify User’s compliance with the terms of this Agreement.
e. Telemetry and Remote Collection. User acknowledges and agrees that the Site, the App and/or certain other Services may transmit to MPH (and MPH may collect and use) certain data and information related to the Site, the App or the Services, including as related to its operation and use by User. [Note: Is the above true/contemplated?]
f. Remote Disablement. In the event that User does not pay any fees due for the Services (to the extent applicable) when due or User is otherwise in material breach of the terms of this Agreement, User acknowledges and agrees that MPH may remotely disable or terminate your use of the MPH Platform, the Site, the App and/or other Services.
7. Data and Privacy.
d. Public Access. You understand and agree that certain information you may import to or process on the Site, the App or other Services may become publicly available depending on your settings. You are solely responsible for monitoring what information you might make publicly available and we are not responsible or liable for any claims related to you making such information publicly available.
8. Third Party Sites and Information. The Site, the App or other portions of the Services may link Users to other sites on the Internet or otherwise include references to information, documents, software, materials, content and/or services provided by other parties (“Third Party Materials”). These Third Party Materials may contain information or material that some people may find inappropriate or offensive. These Third Party Materials (and the third parties responsible therefor) are not under MPH’s control, and User acknowledges that MPH is not responsible for the accuracy, completeness, validity, copyright compliance, legality, decency, or any other aspect of such Third Party Materials, nor is MPH responsible for errors or omissions in any references to other parties or their products and services. The inclusion of Third Party Materials, including any reference or link thereto, is provided merely as a convenience and does not imply endorsement of, or association with, the Site, the App, the Services, MPH or MPH’s Affiliates, or any warranty of any kind, either express or implied. You access and use all such Third Party Materials entirely at your own risk and subject to such third parties’ terms and conditions.
9. Intellectual Property Information.
b. Feedback. By submitting feedback and suggestions, you agree to grant and hereby do grant a non-exclusive, perpetual, irrevocable, worldwide and royalty-free license to any intellectual property rights you may have in your feedback and suggestions to MPH to use to improve MPH products or services. You acknowledge that submission of feedback and suggestions is voluntarily and MPH may consider or is developing technology that is the same or similar to your feedback or suggestions.
10.User Submitted Information.
a.User Material. Company agrees that the User Material is owned by User and is protected by U.S. and international intellectual property laws, and that User shall solely own and retain all right, title and interest to, including all intellectual property rights in, the User Material. User is solely responsible for the accuracy, quality, integrity, legality, reliability, appropriateness, and copyright of all User Material, and Company assumes no responsibility for the deletion, correction, destruction, loss, infringement or failure of the Services to store any User Material. Company shall not be required to maintain a backup or copy of any User Material and Company shall have no liability for any loss of User Material, whether caused by Company, User, any third party service provider or any third party. User shall comply with local, national and international laws and regulations applicable to the transmission or storage of data through the Services. User is solely responsible for ensuring that it has all rights necessary to provide the User Material to MPH and the Services. User acknowledges and agrees that no transmission or hosting of data is 100% secure and there remains a possibility that User Material may be subject to unauthorized access by hacking, malware, systems breach or other unauthorized method and User shall have no liability relating to any such breach or access.
b.Suspected Copyright Violations. MPH respects the intellectual property of others, and MPH asks Users to do the same. If User believes its copyright, trademark or other property rights have been infringed by the Services, User should send notification to MPH, via the contact information described herein, immediately. To be effective, the notification must include: (i) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (ii) information reasonably sufficient to permit MPH to contact the complaining party, such as address, telephone number and, if available, an electronic mail address at which the complaining party may be contacted; (iii) identification of the material that is claimed to be infringing or to be subject to infringing activity and that is to be removed and information reasonably sufficient to permit MPH to locate the materials; (iv) a statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, agent, or the law; and (v) a statement that the information in the notification is accurate and, under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringing.
c. Maintenance and Support. MPH and you acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App.
d.Warranty. In the event of any failure of the App to conform to any applicable warranty, you may notify Apple, and Apple may refund the purchase price for the App paid via iTune or the App Store, if any, to you. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App and, as between MPH and Apple, any other claims, losses, liabilities, damages, costs, or expenses attributable to any failure to conform to any warranty will be the sole responsibility of MPH.
g.Legal Compliance. You represent and warrant that: (i) you are not located in a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. government list of prohibited or restricted parties.
F. OTHER LEGAL TERMS
All questions, complaints, claims or other notices to MPH shall be in writing and shall be made either via email or conventional mail to the addresses set forth below, or using any contact functions made available via the Site or the App.
[Insert address, telephone number, email address]
4.Disclaimer of Warranties. THE MPH PLATFORM, THE SITE, THE APP, THE SERVICES, AND ALL CONTENT ON, AND SERVICES PROVIDED THROUGH, THE MPH PLATFORM, THE SITE, THE APP AND/OR THE OTHER SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES (EXPRESS OR IMPLIED) OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE FOREGOING, MPH MAKES NO WARRANTY THAT (A) THE MPH PLATFORM, THE SITE, THE APP, THE CONTENT AND SERVICES WILL MEET USER’S REQUIREMENTS, (B) THE MPH PLATFORM, THE SITE, THE APP, THE CONTENT AND SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (C) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SITE, THE APP, THE SERVICES OR RESULTS OF THE SERVICE WILL BE EFFECTIVE, ACCURATE OR RELIABLE, OR (D) THE QUALITY OF ANY VEHICLES, PRODUCTS, SERVICES, OR INFORMATION LEASED, PURCHASED OR OBTAINED BY A USER FROM THE MPH PLATFORM, THE SITE, THE APP OR THE SERVICES WILL MEET SUCH USER’S EXPECTATIONS OR BE FREE FROM MISTAKES, ERRORS OR DEFECTS. WE ALSO DISCLAIM ALL RESPONSIBILITY FOR THE ACTS AND OMISSIONS OF THE OTHER USERS. THE MPH PLATFORM, THE SITE, THE APP, THE CONTENT AND/OR RESULTS OF THE SERVICE COULD INCLUDE TECHNICAL OR OTHER MISTAKES, INACCURACIES OR TYPOGRAPHICAL ERRORS. THE USE OF THE MPH PLATFORM, THE SITE, THE APP, THE SERVICES OR THE DOWNLOADING OR OTHER ACQUISITION OF ANY MATERIALS THROUGH THE SITE AND/OR THE APP ARE DONE AT USER’S OWN DISCRETION AND RISK AND WITH USER’S AGREEMENT THAT USER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE ARISING THEREFROM, INCLUDING, WITHOUT LIMITATION, ANY DAMAGE TO USER’S COMPUTER SYSTEM(S) OR NETWORK(S) OR LOSS OF DATA THAT RESULTS FROM SUCH ACTIVITIES. SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO USER. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM MPH, AN MPH AFFILIATE, OR ANY OF THEIR RESPECTIVE SERVICE PROVIDERS OR REPRESENTATIVES, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
5.Limitation of Liability. IN NO EVENT SHALL MPH BE LIABLE TO ANY USER OR ANY THIRD PARTY FOR ANY SPECIAL, PUNITIVE, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOSS OF USE, DATA OR PROFITS AND DAMAGES FOR PROPERTY DAMAGE, BODILY INJURY, OR WRONGFUL DEATH, WHETHER OR NOT MPH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND ON ANY THEORY OF LIABILITY, ARISING OUT OF OR IN CONNECTION WITH THE USE OF THE MPH PLATFORM, THE SITE, THE APP, THE SERVICES, OR ANY CONTENT, OR WEB SITE REFERENCED OR LINKED TO FROM THE MPH PLATFORM, THE SITE OR THE APP, OR FROM THE OPERATION, USE, POSSESSION OR RENTAL OF A VEHICLE. FURTHER, MPH SHALL NOT BE LIABLE IN ANY WAY FOR THIRD PARTY GOODS AND SERVICES OFFERED THROUGH THE MPH PLATFORM, THE SITE OR THE APP OR FOR ASSISTANCE IN CONDUCTING COMMERCIAL TRANSACTIONS THROUGH THE MPH PLATFORM, THE SITE OR THE APP, INCLUDING WITHOUT LIMITATION LIABILITY FOR DAMAGES ARISING FROM USE OF VEHICLES RENTED OR MADE AVAILABLE THROUGH THE MPH PLATFORM, FROM A VEHICLE NOT BEING AVAILABLE WHEN IT WAS SUPPOSED TO BE, FROM ANY MALFUNCTION OF OR DEFICIENCY IN A VEHICLE, FROM ANY BREACH OF WARRANTY OR OTHER OBLIGATION BY ANY MANUFACTURER OR OTHER THIRD PARTY, FROM ANY PERSONAL INJURY OR PROPERTY DAMAGE SUFFERED BY YOU OR ANY OF YOUR PASSENGERS, AND FROM ANY ACTIONS OR INACTION OF THE OWNER OR RENTER. MPH AND ITS AFFILIATES MAXIMUM LIABILITY UNDER THIS AGREEMENT AND FOR ANY CLAIMS RELATED TO A USER’S USE OR ACCESS TO THE SITE, THE APP OR ANY OF THE OTHER SERVICES SHALL BE $100. SOME JURISDICTIONS PROHIBIT THE EXCLUSION OR LIMITATION OF LIABILITY FOR DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO USER IN THOSE PARTICULAR JURISDICTIONS. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN MPH AND YOU. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. YOU WAIVE CALIFORNIA CIVIL CODE §1542, OR ANY SIMILAR LAW, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
7.International Use. Although the Site and/or the App and/or other Services may be accessible worldwide, the MPH Platform is intended to only facilitate a peer to peer vehicle sharing marketplace within the United States. MPH makes no representation that (i) use of, or Content on, the Site, the App or any other Services are appropriate or available for use in locations outside the United States, and (ii) use of the Site, the App, or any other Services, or Content on the Site or the App or made available via the Services, are compliant with foreign law. Users who choose to access the Site, the App or other Services from other locations do so on User’s own initiative and are responsible for compliance with local laws and requirements. Any offer for any product, service, and/or information made in connection with the Site, the App or with any of the other Services is void where prohibited.
a.Forum and Venue. If you are a User located in the United States, the “Special Arbitration Provision for United States Users” section below applies to you. Read that section carefully and completely. If you are not subject to that provision, you agree that you will resolve any claim, complaint, cause of action, controversy or dispute you have with us relating to, arising out of, or in any way in connection with this Agreement, us, or our Services (each, a “Dispute” and together, “Disputes”) exclusively in the state and federal courts located in Miami, Florida, and you agree to submit to the personal jurisdiction of such courts for the purpose of litigating all such Disputes.
b.Governing Law. The law of the State of Florida govern this Agreement, as well as any Disputes, whether in court or arbitration, which might arise between MPH and you, without regard to conflict of law provisions.
9.Special Arbitration Provision for United States Users.
a. PLEASE READ THIS SECTION CAREFULLY BECAUSE IT CONTAINS ADDITIONAL PROVISIONS APPLICABLE ONLY TO OUR UNITED STATES USERS. IF YOU ARE A USER LOCATED IN THE UNITED STATES, IT REQUIRES YOU TO SUBMIT TO BINDING INDIVIDUAL ARBITRATION OF ALL DISPUTES, EXCEPT FOR THOSE THAT INVOLVE EXCLUDED DISPUTES AND EXCEPT THOSE THAT CAN BE BROUGHT IN SMALL CLAIMS COURT. THIS MEANS YOU ARE WAIVING YOUR RIGHT TO HAVE SUCH DISPUTES RESOLVED IN COURT BY A JUDGE OR JURY. THIS SECTION ALSO LIMITS THE TIME YOU HAVE TO START AN ARBITRATION OR, IF PERMISSIBLE, A COURT ACTION. FINALLY, THIS SECTION WAIVES YOUR RIGHT TO HAVE YOUR DISPUTE HEARD AND RESOLVED AS A CLASS ACTION, CLASS ARBITRATION, OR A REPRESENTATIVE ACTION. [NOTE – THIS ARBITRATION SECTION ONLY COVERS USERS FROM THE UNITED STATES. WE HAVE NOT RESEARCHED DISPUTE RESOLUTION REQUIREMENTS FOR USERS FROM OTHER COUNTRIES – DISPUTES WITH THOSE INDIVIDUALS WOULD BE RESOLVED VIA COURT (AS OPPOSED TO ARBITRATION). IF YOU SEE A HIGH VOLUME OF USERS FROM ANOTHER PARTICULAR COUNTRY, WE COULD CONSIDER DOING MORE RESEARCH ON THIS OR SEEKING THE ADVICE OF LOCAL COUNSEL IN THAT COUNTRY.]
b. Agreement to Arbitrate. MPH and you agree to arbitrate all Disputes (except Excluded Disputes) between us. This agreement to arbitrate is intended to be broadly interpreted. It includes, but is not limited to: (i) Disputes arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory; (ii) Disputes that arose before this or any prior Agreement (including, but not limited to, claims relating to advertising); (iii) Disputes that are currently the subject of purported class action litigation in which you are not a member of a certified class; and (iv) Disputes that may arise after the termination of this Agreement. References to “MPH” in this Section include our Affiliates. Notwithstanding the foregoing, either party may bring an individual action in small claims court. This arbitration agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies or from either party bringing an action in court related to Excluded Disputes. Such agencies can, if the law allows, seek relief against us on your behalf. YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND MPH ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, INSTEAD ELECTING THAT ALL DISPUTES SHALL BE RESOLVED BY ARBITRATION. YOU ACKNOWLEDGE THAT YOU HAVE BEEN ADVISED THAT YOU MAY CONSULT WITH AN ATTORNEY IN DECIDING TO ACCEPT THIS AGREEMENT TO ARBITRATE. This Agreement evidences a transaction in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision. This arbitration provision shall survive termination of this Agreement. An “Excluded Dispute” means any dispute or claim relating to the enforcement or infringement of your or our intellectual property rights (such as copyrights, trademarks, domains, logos, trade dress, trade secrets, and patents). For clarity and notwithstanding the foregoing, those disputes relating to, arising out of, or in any way in connection with your rights of privacy and publicity are not Excluded Disputes.
c. Notice. A party who intends to seek arbitration must first send to the other a written Notice of Dispute (“Notice”). The Notice to MPH should be addressed to: [ ] (“Notice Address”) with a copy by email to [ ]. We may provide notice to your email address that you use during registration; provided that you may inform MPH of an address for Notice within 15 days of the date this Agreement is first effective on you by providing such address in writing by certified mail to the MPH address in the foregoing sentence and a copy to that email address above. The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). If MPH and you do not reach an agreement to resolve the Dispute within 30 days after the Notice is received, you or MPH may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by MPH or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or MPH is entitled.
d. AAA Rules. The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by this Agreement, and will be administered by the AAA. The AAA Rules are available online at adr.org, by calling the AAA at 1-800-778-7879. The arbitrator is bound by the terms of this Agreement. All issues are for the arbitrator to decide, except that issues relating to the scope and enforceability of the arbitration provision are for the court to decide. Unless MPH and you agree otherwise, any arbitration hearings will take place in the county (or parish) of your principal residence. If your claim is for $10,000 or less, we agree that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. The payment of all AAA filing, administration, and arbitrator fees for any arbitration initiated in accordance with the notice requirements above will be governed by the AAA Rules.
e. No Class Actions, Class Arbitrations, or Representative Actions. 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 claim. YOU AND MPH AGREE THAT EACH MAY BRING Disputes AND CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and MPH agree otherwise, the arbitrator may not consolidate more than one person’s Disputes, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this arbitration provision shall be null and void.
f. Opt-Out Procedure. You can decline this agreement to arbitrate by emailing us at [insert email address – e.g. [email protected] and make sure you track any incoming emails] and providing the requested information as follows: (1)Your Name; (2) the date your first installed the App or used the Services; (3) Your Address; (4) Your Phone Number; (5) and clear statement that you wish to opt out of this arbitration provision in the Agreement. The Opt-Out Notice must be emailed no later than 30 days after the date you first accept the Agreement by installing the App and/or using the Services.
g. Changes. Notwithstanding any provision in this Agreement to the contrary, we agree that if MPH makes any future change to this arbitration provision (other than a change to the Notice Address), you may reject any such change by sending us written notice within 30 days of the change to the Arbitration Notice Address provided above or to the email address set forth above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this provision.
h. Place to File Permitted Court Actions. If you opt out of the agreement to arbitrate, if your Dispute is an Excluded Dispute, or if the arbitration agreement is found to be unenforceable, you agree to be subject to the “Forum and Venue” provision in the “Dispute Resolution” section set forth above.
i. Severability. If the prohibition against class actions and other Disputes brought on behalf of third parties is found to be unenforceable for a Dispute, then all of the provisions above under the caption “Special Arbitration Provision for United Users” will be null and void as to that Dispute.
b.Force Majeure. In addition to any excuse provided by applicable law or under this Agreement, MPH shall be excused from liability for non-delivery or delay in delivery of products and services available through the MPH Platform, the Site or the App arising from any event beyond MPH’s reasonable control, whether or not foreseeable by either party, including but not limited to, labor disturbance, war, fire, accident, adverse weather, inability to secure transportation, governmental act or regulation, and other causes or events beyond MPH’s reasonable control, whether or not similar to those which are enumerated above.