LAST UPDATED: May 2, 2017.
3. TERM AND TERMINATION
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
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
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.
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.
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.
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
19. DISPUTE RESOLUTION
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
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