Terms of Service
Last Updated: September 3, 2013
IMPORTANT – PLEASE READ THIS TERMS OF SERVICE AGREEMENT (“AGREEMENT”) CAREFULLY. BY ACCESSING AND USING THE SERVICES (AS DEFINED BELOW), (1) YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS AGREEMENT, AND (2) YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT. WE RESERVE THE RIGHT TO AMEND THIS AGREEMENT AT ANY TIME AS DISCUSSED BELOW.
This Agreement is a legal agreement between you and Flywheel Software, Inc. ("we", "us"or the“Company”) for your use of the Company’s (a) Flywheel mobile software application ( the“Software”), (b) website located at http://flywheel.com/ (“Website”), and (c) related services (the Software, Website and related services being referred to collectively as the (“Services”). The Services enable a potential customer of a vehicle for hire (“User”) to hail a professional driver (“Driver”) and enables such Driver to locate such User, using GPS technology.
1. important disclaimers.
The Services are intended only for vehicle hailing services and should not be used or relied on as an emergency locator system, for family finding purpose, while driving or operating vehicles, or in a manner where the failure or inaccuracy of the Services could lead directly to death, personal injury, or severe physical or property damage. For the avoidance of doubt, the Services do not constitute vehicle dispatching services, vehicle booking services, or vehicle metering services.
2. Consent to Reveal GPS Location, Commercial Location and Telephone Number.
To provide you the Services, the Software tracks the GPS location of the handheld mobile device on which the Software is installed. The Services also allow Users to hail a vehicle for hire from select commercial locations (e.g., a Starbucks). We will disclose this GPS information and commercial location to other users of the Services, and may disclose your telephone number, as described in our Privacy Policy. By using the Service, you consent to our collection, disclosure, and use of such GPS information, commercial location and telephone number as described in our Privacy Policy. Please review our Privacy Policy at http://flywheel.com/privacyandterms/privacy. The terms of the Privacy Policy are incorporated into, and considered a part of, this Agreement.
3. account and payments.
3.1 In general, we require that you create an account with the Company (“Account”) to personalize your experience while using the Services and to enable us to collect the payments described herein. We may waive this requirement in connection with promotional offers extended to new users of the Services.
3.2 When you create an Account, you represent and warrant that: (a) all required registration information you submit is truthful and accurate; (b) you will maintain the accuracy of such information; (c) your use of the Services does not violate any applicable law or regulation or the terms of this Agreement; and (d) you are at least 18 years old. During the registration process, you will be asked to choose a username and a password for your Account and may associate your phone number with the Account. You are entirely responsible for maintaining the confidentiality of your password. You agree not to use the Account of another user at any time. You agree to notify us immediately if you suspect any unauthorized use of your Account or access to your password. You are solely responsible for any and all use of your Account.
3.3 When you arrange a ride through the Services, all charges for transportation services and any additional fees payable to the Company will be charged to the credit card or other payment card associated with your Account. A tip may be added to your charges either by default or in the amount you select, as described in our Frequently Asked Questions for Riders. We may verify and authorize your card details when you first create an account as well as when you use the Services.
3.4 We may charge you an additional fee in connection with any ride you arrange through the Services. We may charge you a cancellation fee if a driver accepts your hail and you either cancel the ride more than a specified period of time after your hail has been accepted or if you fail to meet your driver at the designated pickup location. These fees are described in our Frequently Asked Questions for Riders.
3.5 Flywheel may, in it’s sole discretion, give promotional codes with various features from time-to-time to any of our customers. Promotion codes are only redeemable for use on the Flywheel platform and are not transferable or redeemable for cash. Promotion codes are subject to expiration and must be used no later than ninety (90) days from the date of promotion code grant or no later than the date indicated in the promotion code.
3.6 All charges related to your use of the Services are billed automatically to the card associated with your Account. Our fees are exclusive of any applicable sales or use taxes or other federal, state or local taxes. All payments billed through the Services are non-refundable. If you have any complaints in relation to the transportation service provided, you must resolve that dispute directly with the driver or transportation provider.3.6 The Company, at its sole discretion, may make promotional offers with different features and different rates to any of its customers. Such promotional offers shall have no cash value. Such promotional offers, unless made to you, shall have no bearing whatsoever on your offer or contract. The Company may change the fees for its Services at its discretion.
4. License.
Subject to the terms of this Agreement, Company grants to you a nontransferable, nonexclusive, royalty-free, fully paid, worldwide license (without the right to sublicense) to (a) install and execute one copy of the Software, in executable object code format only, solely on your handheld mobile device and solely for your personal use of the Services, and (b) reproduce the text, images, and other content on our Website, solely for your own personal use of the Services.
5. Restrictions.
The rights granted to you in this Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, distribute, host, outsource, disclose or otherwise commercially exploit the Services (including the Software and Website) or make the Services (including the Software and Website) available to any third party; (b) you shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Services (including the Software and Website); (c) you shall not access the Services (including the Software and Website) in order to build a similar or competitive product or service; and (d) except as expressly stated herein, no part of the Services (including the Software and Website) may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Any future release, update, or other addition to functionality of the Services (including the Software and Website) provided by Company (if any) shall be subject to the terms of this Agreement unless Company expressly states otherwise. You shall preserve all copyright and other proprietary rights notices on the Software and Website and all copies thereof. Company reserves the right, at any time, to modify, suspend, or discontinue the Services (including the Software and Website) or any part thereof with or without notice. You agree that Company will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Services (including the Software and Website) or any part thereof.
6. Ownership.
The Services (including the Software and Website) and all worldwide copyrights, trade secrets, and other intellectual property rights therein, are the exclusive property of Company and its suppliers. All rights in and to the Services (including the Software and Website) not expressly granted to you in this Agreement are reserved by Company and its suppliers. The Company name, Company logo and the product names associated with the Services are trademarks of the Company or third parties, and no right or license is granted to use them.
7. acceptable use policy.
7.1 Acceptable Use. You agree not to use the Services in a manner that is harassing, abusive, tortious, threatening, harmful, abusive, invasive of another’s privacy, or otherwise objectionable, or in violation of any law or regulation. In addition, you agree not to use the Services to: (a) upload, transmit, or distribute any computer viruses, worms, or any software intended to damage or alter a computer system or data; (b) send unsolicited or unauthorized advertising, promotional materials, junk mail, spam, obscene or offensive content, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (c) harvest, collect, gather or assemble information or data regarding other users, including e-mail addresses, without their consent; (d) interfere with or disrupt servers or networks connected to the Services or violate the regulations, policies or procedures of such networks; (e) attempt to gain unauthorized access to the Services, other computer systems or networks connected to or used together with the Services, through password mining or other means; or (f) harass or interfere with another user’s use and enjoyment of the Services.
7.2 Enforcement. We reserve the right (but have no obligation under this Agreement) to investigate and/or take appropriate action, including legal action, in our sole discretion against you if you violate this provision or any other provision of this Agreement, including suspending or terminating your Account and/or reporting you to law enforcement authorities. In order to cooperate with legitimate governmental requests, subpoenas or court orders, to protect our systems and customers, or to ensure the integrity and operation of our business and systems, we may access and disclose any information we consider necessary or appropriate, including your Account, IP address, and traffic information, and usage history.
8. Third-Party Websites; Interaction With Drivers.
8.1 Third-Party Websites. The Services might contain links to third-party websites (“Third-Party Websites”). Such Third-Party Websites are not under the control of Company. Company is not responsible for any Third-Party Websites. Company provides these Third-Party Websites only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites or their products or services. You use all links in Third-Party Websites at your own risk. When you leave the Services, our terms and policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Websites, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
8.2 Interaction With Drivers. You acknowledge and agree to the following: We are not a transportation carrier and do not provide transportation services. Because we do not control Drivers, you acknowledge and agree that we are not responsible for, and make no representations are warranties regarding, any Driver. Your interactions with any Drivers are solely between you and such Drivers, including without limitation payment and delivery of services, and any other terms, conditions, warranties, or representations associated with such interactions. You agree that Company will not be responsible for any loss, damage, injury, or death incurred as the result of any such interactions, including without limitation if the Driver does not show up. If there is a dispute between you and any user, we are under no obligation to become involved.
8.3 Release. You hereby release us, our officers, employees, agents and successors from claims, demands any and all losses, damages, rights, and actions of any kind including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from any interactions with or conduct of any Drivers or other Users or Third-Party Websites. IN CONNECTION WITH THE FOREGOING, IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
9. indemnity.
You agree to indemnify and hold Company, its parents, subsidiaries, affiliates, any related companies, its suppliers, licensors and partners, and the officers, directors, employees, agents and representatives of each of them harmless from and against any and all claims, costs, damages, losses, liabilities and expenses, including attorneys’ fees and costs, arising out of or in connection with any claim or demand made by any third party due to or arising out of your download or use of the Services (including the Software or Website) or your violation of this Agreement. Company reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate with our defense of these claims. You agree not to settle any such matter without the prior written consent of Company. Company will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
10. Disclaimer of Warranties.
THE SERVICES (INCLUDING THE SOFTWARE AND WEBSITE) ARE PROVIDED “AS-IS” AND “AS AVAILABLE.” THE COMPANY EXPRESSLY DISCLAIMS ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT. THE COMPANY MAKES NO WARRANTY THAT THE SERVICES (INCLUDING THE SOFTWARE AND WEBSITE): (A) WILL MEET YOUR REQUIREMENTS; OR (B) WILL BE AVAILABLE, UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE BASIS, VIRUS-FREE, ACCURATE, RELIABLE, COMPLETE, LEGAL, OR SAFE. IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE SERVICES, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF DOWNLOAD OF THE SOFTWARE.
11. Limitation of Remedies and Damages.
IN NO EVENT SHALL THE COMPANY BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFIT OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM (A) YOUR USE OF OR INABILITY TO USE THE SERVICES (INCLUDING THE SOFTWARE AND WEBSITE), (B) ANY TRANSPORTATION SERVICES YOU SCHEDULE OR ATTEMPT TO SCHEDULE BY MEANS OF THE SERVICES, (C) THE USE, DISCLOSURE, OR DISPLAY OF YOUR GPS INFORMATION, TELEPHONE NUMBER OR COMMERCIAL LOCATION IN ACCORDANCE WITH THIS AGREEMENT, OR (D) YOUR INTERACTIONS WITH ANY OTHER USER OF THE SERVICES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE SERVICES (INCLUDING THE SOFTWARE AND WEBSITE) ARE AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE PHONE OR LOSS OF DATA RESULTING THEREFROM. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO THE GREATER OF THE PRICE YOU PAID FOR ACCESS TO THE SERVICES IN THE PRIOR MONTH OR FIFTY U.S. DOLLARS ($50). CERTAIN STATES AND/OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE EXCLUSIONS SET FORTH ABOVE MAY NOT APPLY TO YOU.
12. Basis of Bargain.
The warranty disclaimer and limitation of liability set forth above are fundamental elements of the basis of the agreement between Company and you. Company would not be able to provide the Services (including the Software and Website) on an economic basis without such limitations. The warranty disclaimer and limitation of liability inure to the benefit of Company’s suppliers.
13. Term and Termination
This Agreement and the licenses granted hereunder are effective on the date you download the Software and shall continue unless this Agreement is terminated by either party pursuant to this section. We may (a) suspend your rights to use the Services or (b) terminate this Agreement, at any time for any reason at our sole discretion, including for any use of the Services in violation of this Agreement. Upon termination of this Agreement, your Account and right to access and use the Services will terminate immediately and any amounts owed to Company hereunder before such termination will be immediately due and payable. You may terminate this Agreement by submitting a request tosupport@flywheel.com. Upon termination, the license granted hereunder shall terminate and you shall immediately destroy any copies of the Software in your possession, but the terms of Sections 1, 2 and 5-18 will remain in effect.
14. For U.S. Government End Users.
The Software is a “commercial item,” as that term is defined at 48 C.F.R. 2.101 (OCT 1995), and more specifically is “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212 (SEPT 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (JUNE 1995), the Software is provided to U.S. Government End Users (a) only as a commercial end item and (b) with only those rights as are granted to all other users pursuant to the terms and conditions herein.
15. Export
The Software and related technology are subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agrees to strictly comply with all such laws and regulations and acknowledges that it has the responsibility to obtain authorization to export, re-export, or import the Software and related technology, as may be required.
16. Changes to Agreement.
This Agreement is subject to occasional revision, and if we make any substantial changes, we will notify you by email and/or by prominently posting notice of the changes on our Website. Any material changes to this Agreement will be effective upon the earlier of thirty (30) calendar days following our dispatch of a notice to you (if applicable) or thirty (30) calendar days following our posting of notice of the changes on our Website. These changes will be effective immediately for new users of our Services. Continued use of our Services following notice of such changes shall indicate your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes.
17. Miscellaneous.
Neither the rights nor the obligations arising under this Agreement are assignable by you, and any such attempted assignment or transfer shall be void and without effect. This Agreement shall be governed by and construed in accordance with the laws of the State of California and the United States without regard to the conflict of laws provisions therein that would require application of the laws of another jurisdiction. Any action under or relating to this Agreement shall be brought solely in the state and federal courts located in California, with sole venue in the courts located in Santa Clara County and each party hereby submits to the personal jurisdiction of such courts, except that Company may seek relief in any court of competent jurisdiction to protect or enforce its intellectual property and proprietary rights. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. In the event that any provision of this Agreement is found to be contrary to law, then such provision shall be construed as nearly as possible to reflect the intention of the parties, with the other provisions remaining in full force and effect. Any notice to you may be provided by email. This Agreement constitutes the entire agreement between the parties pertaining to the subject matter hereof, and any and all written or oral agreements previously existing between the parties are expressly canceled. Any modifications of this Agreement must be in writing and agreed to by both parties.
18. Notices, Questions or Additional information.
If you have questions regarding this Agreement, or wish to obtain additional information, please contact us at:support@flywheel.com.