Provision of Services
Subject to the terms and conditions of this Agreement and 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;
- install, copy and use the Smartcar Materials solely for Developer’s use of the Smartcar Services and subject to Smartcar’s then-current Documentation; and
- write, distribute and execute Developer Applications that interface with the Smartcar Services.
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.
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.
Data Processing Addendum
To the extent Smartcar processes any Personal Data (as defined in the DPA referenced below) on Developer’s behalf in the performance of the Smartcar Services, the data processing addendum at https://smartcar.com/dpa (“DPA”) posted as of the date of Developer’s entering into this Agreement (and as the DPA may be updated by Smartcar if required under applicable law), is hereby incorporated by reference and shall apply, and the parties agree to comply with the terms of the DPA. For the purposes of the Standard Contractual Clauses (if applicable), Developer and its applicable Affiliates are each the data exporter, and Developer's entering into this Agreement shall be treated as its execution of the Standard Contractual Clauses and their Appendices.
Fees and Taxes
Developer will pay Smartcar the fees set forth in (i) if you purchase access to the Smartcar Services via Smartcar’s website (an “Online Order”), Smartcar’s standard schedule of fees, as may be updated from time to time, or (ii) if you and Smartcar execute a sales quote, order form or similar document for the Smartcar Services (“Sales Order”), the fees set forth in such Sales Order. Each Sales Order is hereby incorporated into this Agreement. If Developer makes an Online Order, Developer hereby authorizes Smartcar to bill Developer’s payment instrument on a periodic basis in accordance with the terms of the applicable payment plan until Developer terminates its account, and Developer further agrees to pay any charges so incurred. 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 to you 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/or Developer Customers 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.
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.
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 and domain names of Smartcar (each, a “Smartcar Mark”) for the purpose of promoting or advertising that Developer uses the Smartcar Services. Developer will not: (i) display a Smartcar Mark in any manner that implies a relationship or affiliation with, sponsorship, or endorsement by Smartcar; (ii) use a Smartcar Mark 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 any Smartcar Mark 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 Confidential Information, and (ii) not to use (except as expressly permitted herein) or divulge to any third person any such Confidential Information.
In addition, Developer shall not, directly or indirectly:
- reverse engineer, decompile, disassemble or otherwise create, attempt to create or derive, or permit or assist any third party to create or derive the source code underlying the Smartcar Technology;
- transfer, resell, lease, license, or assign Smartcar Services or otherwise offer the Smartcar Technology on a standalone basis (it being understood that the foregoing does not prohibit the distribution of Developer Applications as permitted hereunder);
- use the Smartcar Technology in violation of any applicable law or outside of the scope of the rights granted in this Agreement this Agreement;
- use or access the Smartcar Technology to build or support products or services competitive to Smartcar; or
- use the Smartcar Technology to access or allow access to Emergency Services.
Developer agrees that Smartcar has the right to aggregate, collect and analyze metadata relating to the performance of the Smartcar Services and Smartcar Platform (e.g., time of request, latency of response, status of success and endpoint of request) and shall be free (during and after the term hereof) to (i) use such metadata to improve Smartcar’s products and services, and (ii) disclose such metadata solely in an aggregated and anonymized format.
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. Smartcar may also terminate or suspend Developer’s account if Developer does not then have an active paid subscription for the Smartcar Services.
With respect to Online Orders, (a) either party may elect not to renew Developer’s paid subscription at the end of the then-current paid subscription period, (b) if Developer wishes to not to renew Developer’s then-current paid subscription, Developer must provide notice by email to email@example.com, and (c) if Smartcar wishes to not to renew Developer’s then-current paid subscription, Smartcar will provide Developer with notice of such non-renewal to Developer’s email address associated with Developer’s account prior to the end of the then-current paid subscription.
Termination of Developer’s account will terminate this Agreement, and Developer will discontinue any further use of the Smartcar Technology 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.
Warranties and Disclaimers
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.
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 COMPONENTS, 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.
Indemnification and Limitation of Liability
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.
Limitation of Liability
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, 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.
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.
Except as set forth in the Section titled ‘These Terms’, 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.
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., 1001 N Rengstorff Ave, Suite 200, Mountain View, CA 94043, Attn: Legal.
This Agreement (including each Sales Order) 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.
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.
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”.
Agreement to Arbitrate
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.
Agreement to Arbitrate
If the parties are not able to resolve 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 of 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.
Exception 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.
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.
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.