Last Updated: February 6, 2018
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Thank you for using the Smartcar Services (as defined below) provided by Smartcar, Inc. (“Smartcar”), which are offered as part of Smartcar’s connected car API platform that allows applications to use standard APIs to communicate with vehicles (the “Smartcar Platform”). As part of the Smartcar Platform, Smartcar has developed the Smartcar Services and Smartcar Materials (each as defined below) that, when used by you, are designed to permit you to develop applications or websites (collectively, “Developer Applications”) and offer those Developer Applications to End Users (as defined below) to communicate with vehicles that are integrated with the Smartcar Platform.
To be eligible to register for a Smartcar account and use the Smartcar Services, you must review and accept the terms of this Agreement by clicking on the “Signup” button or other mechanism provided. Please review this agreement carefully. By accepting this agreement or using the Smartcar Services, you agree to this agreement with Smartcar. If you do not agree to be bound by this agreement, you should not create an account or use the Smartcar Services.
In this Agreement, “you,” “your” and “Developer” will refer to you. If you are registering for a Smartcar account or using the Smartcar Services on behalf of an entity or other organization, you are agreeing to this Agreement for that entity or organization and representing to Smartcar that you have the authority to bind that entity or organization to this Agreement (and, in which case, the terms “you”, “your” and “Developer” will refer to that entity or organization).
Disputes relating to this agreement, your account or the Smartcar Services must be resolved by binding arbitration and on an individual basis only.
The following terms, when used in this Agreement will have the following meanings:
“Affiliates” means an entity that directly or indirectly Controls, is Controlled by, or is under common Control with another entity, so long as such Control exists. For the purposes of this definition, “Control” means beneficial ownership of 50% or more of the voting power or equity in an entity.
“Confidential Information” means any information disclosed by either party that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential in light of the nature of the information and the circumstances surrounding disclosure. However, “Confidential Information” will not include any information which (a) is in the public domain through no fault of receiving party; (b) was properly known to receiving party, without restriction, prior to disclosure by the disclosing party; (c) was properly disclosed to receiving party, without restriction, by another person with the legal authority to do so; or (d) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.
“Documentation” means the instructions, on-line help files, technical documentation and user manuals made available by Smartcar for the Smartcar Services.
“Emergency Services” means services that allow a user to connect with emergency services personnel or public safety answering points, such as 911, E911, police, fire or ambulance services.
“End User” means an end user of the Smartcar Platform.
“Developer Materials” means any data and other materials provided or made available to Smartcar by Developer for the purpose of using the Smartcar Services.
“Smartcar Materials” means the Smartcar application program interfaces (APIs) for the Smartcar Platform and Documentation, code samples and technical support materials that may be made available by Smartcar to Developer in connection with the Smartcar Services.
“Smartcar Services” means the SaaS-based services, programs and functions provided by Smartcar to Developer as part of the Smartcar Platform, and subsequent updates or upgrades of any of the foregoing made generally available by Smartcar.
2.1 These Terms
Smartcar may revise this Agreement from time to time. If Smartcar does revise this Agreement, the revised Agreement will supersede prior versions. Unless Smartcar says otherwise, revisions will be effective upon the effective date indicated at the top of this Agreement. Smartcar will provide you advance notice of any material revisions. This notice will be provided via the account portal and/or via an email to the email address Smartcar has on file. For other revisions, Smartcar will update the effective date of this Agreement at the top of the page. Smartcar encourages you to check the effective date of this Agreement whenever you visit Smartcar’s website or account portal. Your continued access or use of the Smartcar Services constitutes your acceptance of any revisions. If you do not agree to the revisions, you should stop using the Smartcar Services and Smartcar is not obligated to provide you with the Smartcar Services.
2.2 API Changes
Developer acknowledges that Smartcar may change, deprecate or republish APIs for any Smartcar Services or feature of the Smartcar Services from time to time, and that it is Developer’s responsibility to ensure that calls or requests Developer makes to the Smartcar Services are compatible with then-current APIs for the Smartcar Services. Although Smartcar endeavors to avoid changes to its APIs or Services that are not backwards compatible, if any such changes become necessary Smartcar will endeavor to notify Developer at least thirty (30) days prior to Smartcar’s implementation of any such incompatible changes to the Service of which it becomes aware.
3.1 Provision of Services
Subject to the terms and conditions of this Agreement, the Smartcar Acceptable Use Policy, available on this page, Smartcar will use commercially reasonable efforts to make the Smartcar Services available to Developer pursuant to this Agreement, and Smartcar hereby grants Developer a non-exclusive, revocable right during the term of this Agreement to access and use the Smartcar Services and Documentation during the term hereof and the right to:
3.2 Account Registration; Developer Responsibilities
To use the Smartcar Services, you will be asked to create an account. As part of the account creation process, you will be asked to provide your email address and create a password. Until you apply for an account, your access to the Smartcar Services will be limited to what is available to the general public. When registering an account, you must provide true, accurate, current and complete information about yourself as requested during the account creation process. You must also keep that information true, accurate, current and complete after you create your account.
Developer shall (a) be responsible for all use of the Smartcar Services and Documentation under its account (whether or not authorized), (b) be solely responsible for the accuracy, quality, integrity and legality of Developer Materials and Developer Applications, and (c) use commercially reasonable efforts to prevent unauthorized access to or use of the Smartcar Services and Documentation and notify Smartcar promptly of any such unauthorized access or use.
3.3 FOSS Software
Certain “free” or “open source” based software (the “FOSS Software”) may be made available in connection with the Smartcar Materials hereunder, but is not considered part of the Smartcar Materials hereunder. A list of the FOSS Software will be provided to Developer upon Developer’s written request.
Developer will pay Smartcar the fees set forth in Smartcar’s standard schedule of fees, as may be updated from time to time, or any other order forms for the Smartcar Services ordered by you and accepted in writing by Smartcar. If Smartcar has not received payment within five (5) days after the due date, interest shall accrue on past due amounts at the rate of one percent (1%) per month, but in no event greater than the highest rate of interest allowed by law, calculated from the date such amount was due until the date that payment is received by Smartcar. Further, Smartcar may restrict or suspend the provision of the Smartcar Services if payment is not made within five (5) business days after Developer’s receipt of notice (including by email) that payment is past due. Except as otherwise specified herein, (a) fees are quoted and payable in United States dollars and (b) payment obligations are non-cancelable and non-pro-ratable for partial months, and fees paid are non-refundable. Developer is solely responsible for collecting and paying any fees associated with transactions between End Users and Developer.
All amounts and fees stated or referred to in this Agreement are exclusive of taxes, duties, levies, tariffs, and other governmental charges (collectively, “Taxes”). Developer shall be responsible for payment of all Taxes and any related interest and/or penalties resulting from any payments made hereunder, other than any taxes based on Smartcar’s net income.
5.1 Ownership Rights
As between the parties, Smartcar owns and will retain all right, title and interest in and to the Smartcar Platform, Smartcar Services and Smartcar Materials (collectively, the “Smartcar Technology”), and Developer owns and will retain all right, title and interest in and to the Developer Materials. No rights are granted other than as expressly set forth herein.
5.2 Smartcar Marks
Subject to the terms and conditions of this Agreement and any trademark usage guidelines that Smartcar may publish from time to time, Smartcar hereby grants Developer a non-transferable, non-sublicensable, non-exclusive license during the term of the Agreement to display the trade names, trademarks, service marks, logos, domain names of Smartcar (each, a “Smartcar Mark”) for the purpose of promoting or advertising that Developer uses the Smartcar Services. In using Smartcar Marks, Developer may not: (i) display a Smartcar Mark in any manner that implies a relationship or affiliation with, sponsorship, or endorsement by Smartcar; (ii) use Smartcar’s Marks to disparage Smartcar or its products or services; or (iii) display a Smartcar Mark on a site that violates any law or regulation. Notwithstanding the above, Smartcar may determine in its sole discretion whether its marks may be used in connection with a Developer Application. Furthermore, Smartcar may modify any Smartcar Marks at any time, and upon notice, Developer will use only the updated Smartcar Marks. Other than as permitted in this Section, Developer may not use any Smartcar Marks without Smartcar’s prior written consent. All goodwill arising from the use of the Smartcar Marks will inure to the sole benefit of Smartcar.
Developer may from time to time provide Smartcar suggestions or comments for enhancements or improvements, new features or functionality or other feedback (“Feedback”) with respect to the Smartcar Technology. Smartcar will have the full, unencumbered right to use, incorporate and otherwise fully exercise and exploit any such Feedback in connection with its products and services.
Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose Confidential Information hereunder. The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except as expressly permitted herein) or divulge to any third person any such Proprietary Information.
In addition, Developer shall not, directly or indirectly:
The term of this Agreement will commence on the date this Agreement is accepted by Developer and continues until Developer’s account is terminated as set forth below.
Developer may terminate its account at any time by sending an email to Smartcar’s customer support expressly requesting such termination. Smartcar may terminate or suspend Developer’s account in the event Developer commits any material breach of any provision of this Agreement and fails to cure that breach within five (5) days after written notice of that breach. Smartcar may also terminate or suspend Developer’s account immediately for cause if: (a) Developer violates (or gives Smartcar reason to believe it has violated) the AUP; (b) there is reason to believe the traffic created from Developer’s use of the Smartcar Services or Developer’s use of the Smartcar Services is fraudulent or negatively impacting the operating capability of Smartcar Services; (c) Smartcar determines, in its sole discretion, that providing the Smartcar Services is prohibited by law, or it has become impractical or unfeasible for any legal or regulatory reason to provide the Smartcar Services; or (d) subject to applicable law, upon Developer’s liquidation, commencement of dissolution proceedings or assignment of substantially all its assets for the benefit of creditors, or if Developer becomes the subject of bankruptcy or similar proceeding.
Upon termination of this Agreement, Developer will discontinue any further use of the Smartcar Services and Smartcar Materials and all rights and obligations will immediately terminate, except that any terms or conditions that by their nature should survive such termination will survive, including the terms and conditions relating to payment, proprietary rights, confidentiality, disclaimers, indemnification, limitations of liability and termination, arbitration and class action waivers and the general provisions below.
Developer warrants that it has the necessary rights and licenses, consents, permissions, waivers and releases to use and disclose the Developer Applications and Developer Materials in connection with the Smartcar Services as contemplated herein.
EXCEPT AS EXPRESSLY SET FORTH HEREIN, EACH PARTY MAKES NO EXPRESS OR IMPLIED WARRANTIES OF ANY KIND INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE.
7.3 BETA SERVICES
FROM TIME TO TIME, DEVELOPER MAY HAVE ACCESS TO ALPHA OR BETA SERVICES, PRODUCTS, FEATURES OR DOCUMENTATION (COLLECTIVELY, “BETA SERVICES”) OFFERED BY SMARTCAR. THE BETA SERVICES ARE NOT GENERALLY AVAILABLE, MAY CONTAIN BUGS, ERRORS, DEFECTS OR HARMFUL COMPONENTSM, AND ARE PROVIDED “AS IS”. SMARTCAR DOES NOT PROVIDE ANY INDEMNITIES OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, IN RELATION THERETO. DEVELOPER OR SMARTCAR MAY TERMINATE DEVELOPER’S ACCESS TO THE BETA SERVICES AT ANY TIME.
Developer will defend, indemnify and hold harmless Smartcar and its Affiliates against any actual or threatened claim, loss, liability, proceeding, governmental investigation or enforcement action arising out of or relating to Developer’s activities under this Agreement or Developer’s acts or omissions in connection with the provision of any Developer Application. Smartcar and its Affiliates will cooperate as fully as reasonably required in the defense of any Claim, at Developer’s expense. Smartcar reserves the right, at Developer’s expense, to retain separate counsel for themselves in connection with any Claim or, if Developer has not responded reasonably to the applicable Claim, to assume the exclusive defense and control of any Claim subject to indemnification under this Section. Developer will pay all costs, reasonable attorneys’ fees and any settlement amounts or damages awarded against Smartcar or its Affiliates in connection with any Claim. Developer will also be liable to Smartcar for any costs and attorneys’ fees Smartcar or its Affiliates incur to successfully establish or enforce Smartcar’s right to indemnification under this Section.
EXCEPT FOR A BREACH OF SECTION 5, UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL SMARTCAR BE LIABLE TO DEVELOPER FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST CONTENT OR DATA, OR FOR ANY AND ALL OTHER DAMAGES OR LOSSES, EVEN IF A REPRESENTATIVE OF SUCH PARTY HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, OR (B) ANY DIRECT DAMAGES, COSTS, OR LIABILITIES IN EXCESS OF THE AMOUNTS PAID BY DEVELOPER UNDER THIS AGREEMENT DURING THE SIX (6) MONTHS PRECEDING THE INCIDENT OR CLAIM.
Smartcar may use Developer’s name and logo on Smartcar’s website and marketing materials to identify Developer’s relationship with Smartcar.
10.2 Assignment; Delegation
Neither party hereto may assign or otherwise transfer this Agreement, in whole or in part, without the other party’s prior written consent, except that either party may assign this Agreement without consent to a successor to all or substantially all of its assets or business related to this Agreement. Any attempted assignment, delegation, or transfer by either party in violation hereof will be null and void. Subject to the foregoing, this Agreement will be binding on the parties and their successors and assigns.
10.3 Amendment; Waiver
Except as set forth in Section 2.1, no amendment or modification to this Agreement, nor any waiver of any rights hereunder, will be effective unless assented to in writing by both parties. Any such waiver will be only to the specific provision and under the specific circumstances for which it was given, and will not apply with respect to any repeated or continued violation of the same provision or any other provision. Failure or delay by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.
If a court of competent jurisdiction determines that any provision of this Agreement is invalid, illegal, or otherwise unenforceable, such provision will be enforced as nearly as possible in accordance with the stated intention of the parties, while the remainder of this Agreement will remain in full force and effect and bind the parties according to its terms.
10.6 Governing Law
The enforceability and interpretation of the arbitration provisions below will be determined by the Federal Arbitration Act (including its procedural provisions). Apart from such arbitration provisions, this Agreement will be governed by the laws of the State of California, exclusive of its rules governing choice of law and conflict of laws. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods. All disputes arising out of the Agreement will be subject to the exclusive jurisdiction and venue of the state and federal courts of San Francisco, California, and the parties hereby consent to the personal jurisdiction of these courts.
Any notice required or permitted to be given hereunder will be given in writing by personal delivery, certified mail, return receipt requested, or by overnight delivery. Notices to Developer must be sent to the email or other address set forth in Developer’s account information. Notices to Smartcar must be sent to the following address: Smartcar, Inc., 425 N Whisman Rd Suite 500, Mountain View, CA 94043, Attn: Legal.
10.8 Entire Agreement
This Agreement comprises the entire agreement between Developer and Smartcar with respect to its subject matter, and supersedes all prior and contemporaneous proposals, statements, sales materials or presentations and agreements (oral and written). No oral or written information or advice given by Smartcar, its agents or employees will create a warranty or in any way increase the scope of the warranties in this Agreement. There shall be no force or effect to any different terms of any pre-printed purchase order or similar forms of Developer, even if signed by the parties after the date hereof.
10.9 Force Majeure
Neither Party will be deemed in breach hereunder for any cessation, interruption or delay in the performance of its obligations due to causes beyond its reasonable control (“Force Majeure Event”), including earthquake, flood, or other natural disaster, act of God, labor controversy, civil disturbance, terrorism, war (whether or not officially declared), cyber attacks (e.g., denial of service attacks), or the inability to obtain sufficient supplies, transportation, or other essential commodity or service required in the conduct of its business, or any change in or the adoption of any law, regulation, judgment or decree.
10.10 Government Terms
Smartcar provides the Smartcar Services and Smartcar Materials, including related software and technology, for ultimate federal government end use solely in accordance with the terms of this Agreement. If Developer (or any of its customers) is an agency, department, or other entity of any government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Smartcar Services, or any related documentation of any kind, including technical data, software, and manuals, is restricted by the terms of this Agreement. All other use is prohibited and no rights than those provided in this Agreement are conferred. The Smartcar Services were developed fully at private expense.
For purposes hereof, “including” means “including without limitation”.
11.1 First Try Customer Support
If you have any issues with the Smartcar Services or Smartcar, you must try to resolve the issue first through Smartcar customer support
11.2 Agreement to Arbitrate
If the parties are not able to the dispute through Smartcar customer support, Developer and Smartcar agree to resolve any dispute arising under this Agreement by binding arbitration in San Francisco, California, or in another location that both parties agree to. This applies to all claims under any legal theory, unless the claim fits in one the exceptions below. It also applies even after Developer has stopped using its Smartcar account or has deleted it. If the parties have a dispute about whether this agreement to arbitrate can be enforced or applies to such dispute, the parties agree that the arbitrator will decide that too.
11.3 Exceptions to Agreement to Arbitrate
The parties will go to court to resolve disputes relating to (a) intellectual property (e.g., trademarks, trade dress, domain names, trade secrets, copyrights or patents); or (b) violation of the AUP. Also, either party can bring a claim in small claims court either in San Francisco, California, or the county where Developer lives (if Developer is an individual), or some other place both parties agree on, if it qualifies to be brought in that court. In addition, if either party brings a claim in court that should be arbitrated or either party refuses to arbitrate a claim that should be arbitrated, the other party can ask a court to force the parties to go to arbitration to resolve the claim (i.e., compel arbitration). Either party may also ask a court to halt a court proceeding while an arbitration proceeding is ongoing.
11.4 Details of Arbitration Procedure
Prior to filing any arbitration, both parties jointly agree to seek to resolve any dispute between the parties by mediation conducted by the American Arbitration Association (“AAA”), with all mediator fees and expenses paid equally by the parties. If mediation is not successful, either party may initiate an arbitration proceeding with AAA. AAA’s rules and procedures are located on their website http://www.adr.org or can be obtained by calling them at 1-800-778-7879. The arbitration will be governed by the then-current version of AAA’s Commercial Arbitration Rules (the "Rules") and will be held with a single arbitrator appointed in accordance with the Rules. To the extent anything described in this agreement to arbitrate conflicts with the Rules, the language of this agreement to arbitrate applies.
Each party will be entitled to get a copy of non-privileged relevant documents in the possession or control of the other party and to take a reasonable number of depositions. All such discovery will be in accordance with procedures approved by the arbitrator. This agreement to arbitrate does not alter in any way the statute of limitations that would apply to any claims or counterclaims asserted by either party.
The arbitrator’s award will be based on the evidence admitted and the substantive law of the State of California and the United States, as applicable, and will contain an award for each issue and counterclaim. The award will provide in writing the factual findings and legal reasoning for such award. The arbitrator will not be entitled to modify this Agreement.
Except as provided in the Federal Arbitration Act, the arbitration award will be final and binding on the parties. Judgment may be entered in any court of competent jurisdiction.
11.5 Class Action Waiver
Developer and Smartcar agree that any claims or controversies between the parties must be brought against each other on an individual basis only. That means neither Developer nor Smartcar can bring a claim as a plaintiff or class member in a class action, consolidated action, or representative action. The arbitrator cannot combine more than one person’s or entity’s claims into a single case, and cannot preside over any consolidated, class or representative proceeding (unless both parties agree otherwise). And, the arbitrator’s decision or award in one person’s or entity’s case can only impact the person or entity that brought the claim, not other Smartcar developers. If a court decides that this class action waiver is not enforceable or valid, then the entire agreement to arbitrate will be null and void, but the rest of this Agreement will still apply.
Last Updated: February 6, 2018
This Acceptable Use Policy (“AUP”) describes actions that Smartcar prohibits when Developer uses the Smartcar Services. This Policy is incorporated by reference and governed by the Developer API Platform Agreement, Developer Terms of Service or other similar written agreement between you and Smartcar, which contains explanations of defined terms and takes precedence over any conflicting provisions in this AUP. By using the Smartcar Services, Developer consents to the terms and conditions of this Acceptable Use Policy.
Developer agrees not to use, and not to encourage or allow any other person or entity to use, the Smartcar Services in prohibited manners, including but not limited to the following:
This list of prohibited uses is provided by way of example and should not be considered exhaustive. All determinations related to violations of this Acceptable Use Policy will be made by Smartcar in its sole discretion. Should your business be deemed high risk by the standards of this policy, Smartcar reserves the right to inquire about your insurance policies.