SmartPedal

Terms of Use

LAST UPDATED:  May 2, 2017.

 

PLEASE READ THE FOLLOWING TERMS OF USE CAREFULLY. THESE TERMS OF USE CONTAIN IMPORTANT INFORMATION ABOUT YOUR RIGHTS AND OBLIGATIONS AND APPLY TO YOUR USE OF: (A) THE INTERNET SITES LOCATED AT SMARTPEDAL.COM AND PEDALLOGIC.COM (COLLECTIVELY, THE “SITE”); (B) SERVICES OPERATED OR PROVIDED THROUGH THAT SITE (“SERVICES”); (C) SOFTWARE MADE BY PEDAL LOGIC LP dba SMARTPEDAL (“SMARTPEDAL,” “WE,” OR “US”), FOR USE ON A PC, PHONE, TABLET OR SIMILAR DEVICE (“APPS”); AND (D) ANY UPDATES TO (A), (B) OR (C). 

BY ACCESSING OR USING THE SITE, SERVICES, OR APPS (COLLECTIVELY, THE “RESOURCES”), YOU ACCEPT AND AGREE TO THESE TERMS OF USE ON BEHALF OF YOURSELF AND/OR THE ENTITY YOU REPRESENT, AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ACCEPT AND AGREE TO THE TERMS ON BEHALF OF YOURSELF AND/OR THE ENTITY YOU REPRESENT.

IF YOU DO NOT AGREE TO THE TERMS OF USE, YOU CANNOT USE THE RESOURCES. 

 

1. OVERVIEW

The following terms and conditions govern your use of the Resources operated or provided by SmartPedal. By accessing or using the Resources, you indicate your acceptance of the Terms of Use. We reserve the right to make any change at any time to the Resources and Terms of Use. The Terms of Use do not apply to your purchase of SmartPedal products and the use of the software embedded in those products. Your use of SmartPedal products and embedded software is governed by the “Terms and Conditions of Sale and End User License Agreement” located at https://smartpedal.com/termsofsale.

 

2. ELIGIBILITY

You may use the Resources only if you: (a) are over the age of 13; (b) can form a binding legal agreement contract with SmartPedal; and (c) comply with the Terms of Use and all applicable local, state/provincial, national and international laws, rules, and regulations. Any use or access of the Resources by anyone previously removed from, or barred from using, the Resources is prohibited and in violation of the Terms of Use.

 

3. TERM AND TERMINATION

The Terms of Use remain in full force and effect so long as you continue to use or access the Resources. SmartPedal may at any time suspend or terminate your rights to use the Resources and/or terminate the Terms of Use if we believe in good faith that you have used the Services in violation of the Terms of Use. Upon termination of the Terms of Use, your Account (as defined herein) and your right to use the Resources automatically terminate.

 

4. ACCOUNTS

To access and/or use certain areas or features of the Resources, you must register for an account (“Account”) and provide certain information about yourself. 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; and (c) your use of the Resources does not violate any U.S. or other applicable law or regulation (e.g., you are not located in an embargoed country or are not listed as a prohibited or restricted party under applicable export control laws and regulations). You are responsible for maintaining the confidentiality of your login information and password, and for all activities that occur under your Account. You may not use another user’s Account without permission. We encourage you to use strong passwords, using a combination of upper and lower case letters, numbers and symbols. You agree to immediately notify SmartPedal of any unauthorized use, or suspected unauthorized use, of your Account or any other breach of security. We are not liable for any loss or damage arising from your failure to comply with the above requirements.

 

5. ACCESS AND USE

Subject to the Terms of Use, SmartPedal grants you a non-transferable, non-exclusive, non-sublicensable right to: (a) use the Site and Services solely for the purposes of obtaining and using goods made by SmartPedal (“Permitted Purpose”); and (b) install and use the Apps solely on your own PC, phone, or tablet device or similar device solely for the Permitted Purpose.

 

6. RESTRICTIONS

The rights granted to you in the Terms of Use are subject to the following restrictions: (a) you agree not to license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Resources; (b) you agree not to access the Resources in order to build sites, services, or software similar or competitive to any aspect of the Resources; (c) you agree not to modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the Resources (except to the extent applicable laws specifically prohibit such restriction for interoperability purposes, in which case you agree to first contact SmartPedal and provide SmartPedal an opportunity to create such changes as are needed for interoperability purposes); (d) you agree that, except as expressly stated herein, no part of the Resources may be copied, reproduced, distributed, republished, downloaded, displayed, posted, or transmitted in any form or by any means; (e) you agree not to upload, transmit, or distribute any computer viruses, worms, or any software intended to damage or alter a computer or communication network, computer, handheld mobile device, data, any aspect of the Resources, SmartPedal products and/or their embedded software, as well as any other system, device or property; (f) you agree not to interfere with, disrupt, or attempt to gain unauthorized access to, the servers or networks connected to the Resources or to violate the regulations, policies, or procedures of such networks; (g) you agree not to access (or attempt to access) any of the Resources by means other than through the interface that is provided by SmartPedal; and (h) you agree not to remove, obscure or alter any proprietary rights notices (including copyrights and trademark notices) which may be contained in or displayed in connection with the Resources. Any future release, update, or other addition to functionality of the Resources shall be subject to the Terms of Use.

 

7. OWNERSHIP

You acknowledge that SmartPedal, its licensors, and suppliers own all intellectual property rights in the Resources, including copyrights, patents, trademarks, and trade secrets. Your use of the Resources does not create or transfer to you or any third party any rights, title, or interest in or to such intellectual property rights. The Resources are licensed to you, not sold, and SmartPedal, its licensors, and suppliers reserve all rights not granted in the Terms of Use.

 

8. IDEAS AND SUGGESTIONS

Upon our invitation or your own initiative, you may choose to submit comments, suggestions, or ideas about how to change or improve the Resources, and/or to change, improve, or design new SmartPedal products (“Ideas”). In making this choice, you agree that: (a) your submissions are voluntary and gratuitous; (b) you make such submissions without restriction and will not place, or attempt to place, SmartPedal under any fiduciary or other obligation with respect to such Ideas; (c) you assign, transfer, and set over to SmartPedal, its successors, legal representatives, and assigns the entire right, title, and interest in such Ideas and the entire right, title, and interest in and to any applications for Letters Patent of the United States or other countries claiming priority to said applications, and any and all Letters Patent or Patents of the United States of America and all foreign countries that may be granted therefor and thereon, and in and to any and all applications claiming priority to said applications, divisions, continuations, and continuations-in-part of said applications, and reissues and extensions of said Letters Patent or Patents, and all rights under the International Convention for the Protection of Industrial Property, the same to be held and enjoyed by SmartPedal, for its own use and behalf and the use and behalf of its successors, legal representatives, and assigns; and (d) SmartPedal is free to use and disclose such Ideas without any additional compensation to you. You also agree that SmartPedal does not waive any rights to use similar or related ideas previously known to SmartPedal, developed by its employees, or obtained from other sources.

 

9. OPEN SOURCE

Certain items of independent, third-party code may be included in the Resources that are subject to the GNU General Public License (“GPL”) or other open source licenses (“Open Source Software”). The Open Source Software is licensed under the terms of the license that accompanies such Open Source Software. Nothing in the Terms of Use limits your rights under, or grants you rights that supersede, the terms and conditions of any applicable end user license for such Open Source Software. In particular, nothing in the Terms of Use restricts your right to copy, modify, and distribute such Open Source Software that is subject to the terms of the GPL. 

 

10. PRIVACY

Please review our Privacy Policy, which is available on our Site. Our Privacy Policy describes practices regarding information we may collect from you and other users of the Resources.

 

11. INFORMATION SECURITY

SmartPedal cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.

 

12. MODIFICATION/DISCONTINUATION

SmartPedal reserves the right at any time to modify, suspend, or discontinue the Resources or any part thereof with or without notice. You agree that SmartPedal will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Resources, or any part thereof.

 

13. UPDATES

SmartPedal may from time to time develop patches, bug fixes, updates, upgrades and other modifications to improve the performance of the Resources (“Updates”). You acknowledge that you may be required to install Updates to continue using the Resources and you agree to promptly install any Updates we provide. In addition, you acknowledge and consent that SmartPedal may update the Resources without requiring any additional consent or action from you. If you do not want such Updates, your remedy is to stop using the Resources and to de-install any Apps.

 

14. REVISIONS TO THE TERMS OF USE

SmartPedal may revise the Terms of Use at any time and with or without notice to you. When we do, we will post the new policy at https://smartpedal.com/termsofuse. Any changes will be effective immediately upon posting of the revised Terms of Use on the Site. You agree to be bound by any and all future revised Terms of Use if you continue to use the Resources after such revisions are posted.

 

15. WARRANTY DISCLAIMER

TO THE MAXIMUM EXTENT PERMITTED BY LAW, SMARTPEDAL PROVIDES THE RESOURCES ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE RESOURCES, WHETHER ORAL, WRITTEN, STATUTORY, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT OF THIRD-PARTY RIGHTS, QUIET ENJOYMENT, AND ACCURACY. SMARTPEDAL DOES NOT WARRANT THAT OPERATION OF THE RESOURCES WILL BE: (A) COMPATIBLE WITH YOUR COMPUTING DEVICE; (B) AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; (C) ACCURATE OR RELIABLE.

IN SO FAR AS SUCH WARRANTIES CANNOT BE DISCLAIMED, TO THE EXTENT PERMITTED BY LAW SMARTPEDAL LIMITS THE DURATION AND REMEDIES OF SUCH WARRANTIES FOR THE RESOURCES TO ONE YEAR OR THE MINIMUM PERMITTED BY LAW, WHICHEVER IS LESS.

WITHOUT LIMITING THE GENERALITY OF THE DISCLAIMERS ABOVE, SMARTPEDAL DOES NOT REPRESENT OR WARRANT THAT YOUR USE OF THE RESOURCES WILL DECREASE THE ENERGY CONSUMPTION OF YOUR VEHICLE. YOU ARE SOLELY RESPONSIBLE FOR THE COST OF ENERGY CONSUMED BY YOUR VEHICLE. YOU USE THE RESOURCES AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR (AND SMARTPEDAL DISCLAIMS) ANY AND ALL LOSS, LIABILITY, OR DAMAGES, INCLUDING TO YOUR PERSON, YOUR VEHICLE OR TO OTHER PERSONS OR PROPERTY, RESULTING FROM YOUR USE OF THE RESOURCES.

 

16. LIMITATION OF LIABILITY

TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL: (A) SMARTPEDAL, ITS PARTNERS, OFFICERS, DIRECTORS, AGENTS, EMPLOYEES, AFFILIATES, PARENTS, SUCCESSORS, ASSIGNS, LICENSORS, SUPPLIERS, AND RESELLERS (COLLECTIVELY, “SMARTPEDAL PARTIES”) BE LIABLE FOR ANY CONSEQUENTIAL, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, INCLUDING ANY DAMAGES FOR PERSONAL INJURY OR LOST DATA, PROFITS, EQUIPMENT OR PROPERTY, ARISING FROM OR RELATING TO THE RESOURCES, INCLUDING BUT NOT LIMITED TO THE ACQUISITION AND USE OF YOUR PERSONAL INFORMATION BY UNAUTHORIZED THIRD PARTIES, EVEN IF SMARTPEDAL KNEW OF, SHOULD HAVE KNOWN OF, OR WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (B) THE TOTAL CUMULATIVE LIABILITY OF THE SMARTPEDAL PARTIES ARISING FROM OR RELATED TO THE RESOURCES, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED THE FEES, IF ANY, ACTUALLY PAID BY YOU TO SMARTPEDAL OR SMARTPEDAL’S AUTHORIZED RESELLER FOR THE RESOURCES AT ISSUE IN THE PRIOR TWELVE (12) MONTHS. THIS LIMITATION IS CUMULATIVE AND WILL NOT BE INCREASED BY THE EXISTENCE OF MORE THAN ONE INCIDENT OR CLAIM.

TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE REMEDIES SET FORTH ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, REMEDIES AND CONDITIONS, WHETHER ORAL, WRITTEN, STATUTORY, EXPRESS OR IMPLIED.

SOME STATES, COUNTRIES, AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE LIMITATIONS AND/OR EXCLUSIONS DESCRIBED ABOVE MAY NOT APPLY TO YOU. YOU MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE, COUNTRY TO COUNTRY, OR JURISDICTION TO JURISDICTION. THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY DO NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

 

17. RELEASE RELATED TO THIRD PARTIES

The Resources may contain links to other web sites and services operated by third parties that are not under our control (“Third-Party Sites”). SmartPedal provides these links only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to such Third-Party Sites. You hereby release the SmartPedal Parties from any past, present, and future claims, liabilities, and damages, known or unknown, arising out of or relating to your interactions with such third parties.

IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, 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.”

 

18. YOUR INDEMNITY TO SMARTPEDAL

To the maximum extent permitted by law, you will indemnify, defend and hold harmless the SmartPedal Parties from any and all claims, demands, causes of action, debts or liabilities (including reasonable attorneys’ fees, expenses and court costs) arising out of or related to your violation of the Terms of Use. We reserve the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify SmartPedal and you agree to cooperate with our defense of such claims. You agree not to settle any such claim without prior written consent from the legal department of SmartPedal. We will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.

 

19. DISPUTE RESOLUTION

You and we each agree to attempt to resolve any claim, dispute or controversy between us (including disputes involving any of the SmartPedal Parties) whether in contract, tort or otherwise, arising out of or relating to the Terms of Use (a “Dispute”) through face-to-face negotiation with persons fully authorized to resolve the Dispute or through mediation utilizing a mutually agreeable mediator, rather than through litigation. If you and we are unable to resolve the Dispute through negotiation or mediation within a reasonable time after written notice from one party to the other that a Dispute exists, the Dispute will be settled by binding arbitration in accordance with the then-current Commercial Arbitration Rules of the American Arbitration Association, which can be reviewed at any time at www.adr.org. The arbitration will be conducted before a single arbitrator mutually acceptable to the parties or, if the parties are unable to agree on an arbitrator, selected pursuant to the Commercial Arbitration Rules. The arbitration hearing shall take place in Contra Costa County, California. The arbitrator shall base its award on the Terms of Use and will follow the law and judicial precedents of the State of California and federal law (including the Federal Arbitration Act) as applicable. The arbitrator shall render its award in writing and will include the findings of fact and conclusion of law upon which the award is based. Any court of competent jurisdiction may enter judgment upon the arbitration award. The existence or results of any negotiation, mediation or arbitration will be treated as confidential except to the extent necessary to enforce the ruling. Notwithstanding the foregoing, you and we will have the right to obtain from a court of competent jurisdiction a temporary restraining order, preliminary injunction or other equitable relief to preserve the status quo or prevent irreparable harm, although the merits of the underlying Dispute will be resolved in accordance with this Section.

 

20. CLASS-ACTION WAIVER

You and we each agree that any proceedings to resolve or litigate any Dispute between us (including a Dispute involving any of the SmartPedal Parties), whether in arbitration, in court, or otherwise, will be conducted solely on an individual basis, and that neither you nor we will seek to have any Dispute heard as a class action, a representative action, a collective action, a private attorney-general action, or in any proceeding in which you or we act or propose to act in a representative capacity. You and we further agree that no arbitration or proceeding will be joined, consolidated, or combined with another arbitration or proceeding without the prior written consent of you, SmartPedal, and all parties to any such arbitration or proceeding.

 

21. GOVERNING LAW

The Terms of Use, and any claim, Dispute or controversy relating to the Terms of Use, are governed by the laws of California, without giving effect to any conflicts of laws principles that require the application of the laws of a different jurisdiction, and by applicable federal law, including the Federal Arbitration Act. Any action or proceeding relating to the Terms of Use must be brought in a federal or state court located in Contra Costa County, California, or the Northern District of California, and you and we irrevocably submit to the jurisdiction and venue of any such court in any such action or proceeding, except that we may seek injunctive relief in any court having jurisdiction to protect our intellectual property or confidential information.

 

22. FOR U.S. GOVERNMENT END USERS

Apps are 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 Apps are provided to U.S. Government End Users only as a commercial end item and with only those rights as are granted to all other customers pursuant to the terms and conditions herein.

 

23. GENERAL PROVISIONS

The Terms of Use constitute the final, complete, and exclusive agreement between you and SmartPedal regarding the Resources and supersedes all prior or contemporaneous agreements, understandings, and communication, whether written or oral. The right and obligations of the Terms of Use are personal to you. Any attempt by you to assign, transfer or delegate the Terms of Use shall be null and void without the express signed written permission of SmartPedal. If any provision of the Terms of Use is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect. All waivers by SmartPedal will be effective only if in a signed writing. Any waiver or failure by SmartPedal to enforce any provision of the Terms of Use on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. Any notice to you may be provided by email to the address that you registered with SmartPedal. The section headings in the Terms of Use are included to help make the agreement easier to read and have no binding effect. You agree that regardless of any statute or law to the contrary, unless otherwise barred by law, any claim or cause of action arising out of or related to your purchase or use of the Resources must be filed within one (1) year after such claim or cause of action arose or is forever barred. 

 

24. QUESTIONS

If you have any questions regarding the Terms of Use, please contact us.