THIS FOLLOWING USER AGREEMENT DESCRIBES THE TERMS AND CONDITIONS ON WHICH BOGART, INC. OFFERS YOU ACCESS TO THE BOGART APPLICATION AND WEBSITE.
Welcome to the user agreement (the "Agreement" or "User Agreement" or "Terms of Service") for Bogart (the "Bogart Platform"), an application owned and operated by Bogart, Inc. a California corporation. This Agreement is a legally binding agreement made between you ("You," "Your," or "Yourself") and Bogart, Inc. ("Bogart", "We", "Us" or "Our").
Bogart is willing to license, not sell, the Bogart Platform to You only upon the condition that You accept all the terms contained in this Agreement. By signing up with or by using the Bogart Platform, You indicate that You understand this Agreement and accept all of its terms. If You do not accept all the terms of this Agreement, then Bogart is unwilling to license the Bogart Platform to You.
This paragraph applies to any version of the Bogart Platform that you acquire from the Apple App Store or Google Play. This Agreement is entered into between You and Bogart. Neither Apple, Inc. ("Apple") nor Google Inc. ("Google") are a party to this Agreement and shall have no obligations with respect to the Bogart Platform. Bogart, not Apple or Google, is solely responsible for the Bogart Platform and the content thereof as set forth hereunder. However, Apple and Google and their respective subsidiaries are third party beneficiaries of this Agreement. Upon Your acceptance of this Agreement, Apple and Google shall each have the right (and will be deemed to have accepted the right) to enforce this Agreement against You as a third party beneficiary thereof.
The Bogart Platform provides a means to enable persons who seek transportation to certain destinations ("Passengers") to be matched with drivers in their vicinity to or through those destinations ("Drivers"). For purposes of this Agreement these services shall collectively be defined as the "Services". This Agreement describes the terms and conditions that will govern Your use of and participation in the Bogart Platform.
Please read this Agreement carefully before using the Services. You must read, agree with and accept all of the terms and conditions contained in this Agreement, which includes those terms and conditions expressly set forth below and those incorporated by reference, before You use any of the Services. By using any of the Services, You become a Participant in Bogart and a User of Services available on the Bogart Platform ("Participant" or "User") and You agree to be bound by the terms and conditions of this Agreement with respect to such Services. You further agree that it is Your sole responsibility to stay apprised of any updates to the terms and conditions for use of the Bogart Platform and to be bound by any updated terms conditions that may subsequently be placed on the Bogart Platform.
IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, PLEASE DO NOT USE OR ACCESS THE BOGART PLATFORM OR REGISTER FOR THE SERVICES PROVIDED ON THE BOGART PLATFORM. We may amend this Agreement at any time by posting the amended terms on the Bogart Platform. In the event that We post amended terms and conditions on the Bogart Platform, Your continued use of the Bogart Platform constitutes acceptance of the updated terms and conditions. Except as stated below, all amended terms shall automatically be effective at the date and time that they are posted on the Bogart Platform. This Agreement may not be otherwise amended except in writing signed by You and Bogart.
BOGART DOES NOT PROVIDE TRANSPORTATION SERVICES, AND BOGART IS NOT A TRANSPORTATION CARRIER. IT IS IN THE SOLE DISCRETION OF THE DRIVER WHETHER OR NOT TO OFFER A RIDE TO A PASSENGER CONTACTED THROUGH THE BOGART PLATFORM, AND IT IS UP THE PASSENGER TO DECIDE WHETHER OR NOT TO ACCEPT A RIDE FROM ANY DRIVER CONTACTED THROUGH THE BOGART PLATFORM. ANY DECISION BY A USER TO OFFER OR ACCEPT TRANSPORTATION ONCE SUCH USER IS MATCHED THROUGH THE BOGART PLATFORM IS A DECISION MADE IN SUCH USER'S SOLE DISCRETION. BOGART OFFERS INFORMATION AND A METHOD TO CONNECT DRIVERS AND PASSENGERS WITH EACH OTHER, BUT DOES NOT AND DOES NOT INTEND TO PROVIDE TRANSPORTATION SERVICES OR ACT IN ANY MANNER AS A TRANSPORTATION CARRIER, AND HAS NO RESPONSIBILITY OR LIABILITY FOR ANY TRANSPORTATION SERVICES VOLUNTARILY PROVIDED TO ANY PASSENGER BY ANY DRIVER USING THE BOGART PLATFORM.
The pricing structure used in calculating the fare for the Transportation Service is negotiated directly between Bogart and its Drivers and can be found at http://www.bogartit.com, or on Our mobile application. Prior to requesting transportation services through the Bogart Platform, You must designate credit card or mobile payment platform from which payment will be made on the Bogart Platform. You acknowledge that it is Your responsibility to keep Us apprised of any changes to and to provide Us with updated credit card or other payment information prior to using the Services. This information can be changed at any time by logging into the Bogart Platform and updating Your payment preferences.
In the event You request transportation services through the Bogart Platform and You later decide to cancel such services, Bogart will charge a cancellation fee of $5.00 to Your payment method You provided on the Bogart Platform. Note that if Bogart, in its sole discretion, later decides to waive any such cancellation fee, such waiver will not create a waiver of this provision of this Agreement and it does not constitute a waiver of Bogart’s right to collect future cancellation fees for future canceled trips.
In the event a Driver reports that you have materially damaged the Driver’s vehicle in an amount in excess of “normal wear and tear”, you agree to pay an additional fee for such damage of up to $250.00. The actual fee charged for damage will depend on the extent of damage, as determined by Bogart in Bogart’s sole discretion, and will be used towards vehicle repair or cleaning. Bogart reserves the right, but is not obligated, to verify or otherwise require documentation of damages prior to processing fees for damages to the Driver’s vehicle(s). All amounts collected for damage-related fees described in this paragraph are non-refundable.
Bogart may, in its sole discretion, offer or make available promotions or discounted services from time to time with different features to any of our Users or prospective Users. These promotions, unless made to You, shall have no bearing whatsoever on Your Agreement or relationship with Bogart.
Bogart strives to connect passengers and drivers in a manner that employs transparent and fair pricing. By using the Bogart Platform, You agree to pay the rates posted on Our website and mobile application in full at the time of service. However, if You dispute any charges made by Bogart for payment for Your Transportation Services, You may do so by logging into your user account and initiating such dispute or by contacting Us at email@example.com. Note that to be considered, any fare dispute must include the date of service, amount being disputed and a reason for your dispute. If Bogart determines that valid reason for Your dispute exists, We may, in our sole discretion, issue a full or partial refund of the disputed amount to the payment method charged at the time of service.
Our Services are available only to, and may only be used by individuals who can form legally binding contracts under applicable law. Without limiting the foregoing, Our Services are not available to children (persons under the age of 18) or to temporarily or indefinitely terminated Participants. By becoming a Participant, You represent and warrant that You are at least 18 years old. By using the Bogart Platform or the Services, You represent and warrant that You have the right, authority and capacity to enter into this Agreement and to abide by the terms and conditions of this Agreement.
You are the sole authorized user of Your account. You are responsible for maintaining the confidentiality of any password provided by You or Bogart for accessing the Services. You are solely and fully responsible for all activities that occur under Your password or account. Bogart has no control over the use of any User's account and expressly disclaims any liability derived therefrom. Should You suspect that any unauthorized party may be using Your password or account or You suspect any other breach of security, You agree to contact Us immediately.
By accepting this Agreement, a Driver agrees that We may obtain information about the Driver, including without limitation the Driver's license information, proof of insurance, licensing information from the Public Utilities Commission or any other licensing governmental agency, operational records, references, driving record and credit information. A Driver hereby authorizes Us to perform a background check on Driver, and further agrees to provide any written authorization necessary to facilitate Our access to the Driver's records described in this paragraph, proof of insurance, references and credit information during the term of the Agreement.
SOCIAL MEDIA AND NETWORKING SITES
As part of the functionality of the Bogart Platform, You may be able to login through online accounts You may have with third party service providers (each such account, a "Third Party Account") by either:
1. providing Your Third Party Account login information through the Bogart Platform; or
2. allowing Bogart to access Your Third Party Account, as is permitted under the applicable terms and conditions that govern Your use of each Third Party Account.
You represent that You are entitled to disclose Your Third Party Account login information to Bogart and/or grant Bogart access to Your Third Party Account (including, but not limited to, for use for the purposes described herein), without breach by You of any of the terms and conditions that govern Your use of the applicable Third Party Account and without obligating Bogart to pay any fees or making Bogart subject to any usage limitations imposed by such third party service providers. By granting Bogart access to any Third Party Accounts, You understand that:
1. Bogart may access, make available and store (if applicable) any content that You have provided to and stored in Your Third Party Account (the "SNS Content") so that it is available on and through the Bogart Platform via Your account, including without limitation any friend, contacts or following/followed lists, and
2. Bogart may submit and receive additional information to Your Third Party Account as indicated herein.
Unless otherwise specified in this Agreement, all SNS Content, if any, shall be considered to be Your Information and Your Content for purposes of this Agreement. Depending on the Third Party Accounts You choose and subject to the privacy settings that You have set in such Third Party Accounts, personally identifiable information that You post to Your Third Party Accounts may be available on and through the Bogart Platform. Please note that if a Third Party Account or associated service becomes unavailable or the Bogart Platform's access to such Third Party Account is terminated by the third party service provider, then SNS Content may no longer be available on and through the Bogart Platform. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD PARTY SERVICE PROVIDERS. Bogart makes no effort to review any SNS Content for any purpose, including but not limited to, for accuracy, legality or non-infringement, and Bogart is not responsible for any SNS Content.
You agree that You will use the Services in a manner consistent with any and all applicable laws and regulations. We reserve the right, but are not obligated to investigate and terminate Your participation in the Bogart Platform if You have misused the Bogart Platform or the Services, or behaved in a way which could be regarded as inappropriate or whose conduct is unlawful or illegal.
1. With respect to Your participation on the Bogart Platform or through the Services, You agree that You will not:
1. Impersonate any person or entity;
2. "Stalk" or otherwise harass any person;
3. Express or imply that any statements You make are endorsed by Us, without Our specific prior written consent;
4. Attempt in any manner or by any means to retrieve, index, "data mine", or reproduce or circumvent the navigational structure or presentation of the Services or its contents;
5. Infringe in any way (whether through posting, distributing, reproducing or otherwise) on any copyrighted material, trademarks, or other proprietary information without obtaining the prior consent of the owner of such proprietary rights;
6. Post, email or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
7. "Mirror" or "frame" any part of the Service, without Our prior written authorization or use meta tags or code or other devices containing any reference to Us or the Services or the Bogart Platform in order to direct any person to any other web site for any purpose; or
8. Modify, adapt, sublicense, translate, sell, reverse engineer, decipher, decompile or otherwise disassemble any portion of the Services or any software used on or for the Services or cause others to do so.
2. You further agree that Your Information and Your interactions on the Bogart Platform shall not:
1. Be false, inaccurate or misleading (directly or by omission or failure to update profile information);
2. Infringe any third party's rights, including but not limited to: intellectual property rights, copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy;
3. Violate any law, statute, ordinance or regulation;
4. Be defamatory, trade libelous, abusive, obscene, profane, offensive, threatening, harassing, sexually or racially offensive; or
5. Contain any offensive or sexually suggestive or connotative language, or any offensive or anatomical or sexual references;
6. You further agree that You will not transfer, use, or sell Your Bogart account and/or ID to any another party. We reserve the right, but We have no obligation, to reject any Participant that does not comply with these prohibitions.
Bogart owns and retains ownership in the Bogart Platform, and all intellectual property therein. Contingent upon Your compliance with the terms and conditions of this Agreement, Bogart hereby grants to You a limited, non-transferable, non-exclusive, non-assignable, revocable license to use the Bogart Platform on
1. any Android device that You own or control;
2. any iPhone, iPod touch or iPad that You own or control and as permitted by the Usage Rules set forth in Section 9b. of the Apple App Sore Terms and Conditions (the "Usage Rules"); and/or
3. any computer (whether "PC" or "Mac") or other device You own or control.
This license does not allow You to use the Bogart Platform on any Android device, iPod touch, iPhone or iPad that You do not own or control, and You may not distribute or make the Bogart Platform available over a network where it could be used by multiple devices at the same time. You may not rent, lease, lend, sell, redistribute or sublicense the Bogart Platform. You may not copy (except as expressly permitted by this license and the Usage Rules), reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Bogart Platform, any updates, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law). Any attempt to do so is a violation of the rights of Bogart and its licensors. If You breach this restriction, You may be subject to prosecution and damages. The terms of the license will govern any upgrades provided by Bogart that replace and/or supplement the Bogart Platform, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern.
Location data provided by the Bogart Platform is for basic location purposes only and is not intended to be relied upon in situations where precise location information is needed or where erroneous, inaccurate or incomplete location data may lead to death, personal injury, or property or environmental damage. Neither Bogart, nor any of its content providers, guarantees the availability, accuracy, completeness, reliability, or timeliness of location data displayed by the Services.
Any of Your Information, including geolocation data, You upload, provide, or post on the Bogart Platform may be accessible to certain Users of the Bogart Platform. We cannot verify or guarantee the accuracy of the information Users provide to Us on the Bogart Platform, and We do not control the information provided by other Users that is made available through Our system. Therefore, Bogart cannot and does not confirm each User's purported identity. You may find other User's information to be offensive, harmful, inaccurate, or deceptive. Please use caution and common sense when using the Bogart Platform. Please note that there are also risks of dealing with underage persons or people acting under false pretense. By using the Bogart Platform, You agree to accept such risks and Bogart is not responsible for the acts or omissions of users on the Bogart Platform. In order to help You evaluate with whom You are dealing, Bogart can link to a User's Facebook.com or Twitter.com profile if they supply Us with their Facebook.com or Twitter.com account information. We also encourage You to communicate directly with each potential Driver or Passenger prior to engaging in an arranged transportation service.
BOGART E-MAIL AND TEXT COMMUNICATIONS
All intellectual property rights on the Bogart Platform and in the Services shall be owned by Us absolutely and in their entirety. These rights include but are not limited to database rights, copyright, design rights (whether registered or unregistered), trademarks (whether registered or unregistered) and other similar rights wherever existing in the world together with the right to apply for protection of the same. All other trademarks, logos, service marks, company or product names set forth in the Bogart Platform are the property of their respective owners. You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Bogart Platform or the Services ("Submissions") provided by You to Us are non-confidential and shall become the sole property of Bogart. Bogart shall own exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to You.
COPYRIGHT COMPLAINTS AND COPYRIGHT AGENT
Bogart respects the intellectual property of others, and expects Users to do the same. If You believe, in good faith, that any materials on the Services infringe upon Your copyrights, please send the following information to Bogart's Copyright Agent at Bogart, Inc., 16835 Algonquin Street, Suite 123, Huntington Beach, California 92649:
1. Your full name, address, telephone number, and e-mail address;
2. A description of the copyrighted work that You claim has been infringed, including specific location on the Services where the material You claim is infringed is located. Include enough information to allow Bogart to locate the material, and explain why You think an infringement has taken place;
3. A description of the location where the original or an authorized copy of the copyrighted work exists – for example, the URL (Internet address) where it is posted or the name of the book in which it has been published;
4. A statement by You that You have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
5. A statement by You, made under penalty of perjury, that the information in Your notice is accurate, and that You are the copyright owner or authorized to act on the copyright owner's behalf; and
6. An electronic or physical signature of the owner of the copyright or the person authorized to act on behalf of the owner of the copyright interest.
You agree to indemnify, defend, and hold Us and Our officers, directors, employees, agents, affiliates and any third parties harmless for any losses, costs, liabilities and expenses (including reasonable attorneys' fees), without regard to the negligence of any third party, including any indemnified person or entity, relating to or arising out of Your use of the Service, including:
1. Your breach of this Agreement;
2. Your violation of any law or the rights of a third party, including, without limitation, Drivers, crew members, Passengers, or other drivers, as a result of Your own interaction with such third party or parties;
3. Any allegation that any materials that You submit to Us or transmit to the Services or to Us infringe or otherwise violate the copyright, trademark, trade secret or other intellectual property or other rights of any third party;
4. Your ownership, use or operation of a vehicle, including Your provision of rides to Passengers; and/or
5. Any other of Your activities in connection with the Services.
ONLINE CONTENT DISCLAIMER
Opinions, advice, statements, offers, or other information or content made available through the Services, but not directly by Us, are those of their respective authors, and should not necessarily be relied upon. Such authors are solely responsible for such content. We do not guarantee the accuracy, completeness, or usefulness of any information on the Services and neither do We adopt nor endorse nor are We responsible for the accuracy or reliability of any opinion, advice, or statement made by parties other than Us. Under no circumstances will We be responsible for any loss or damage resulting from anyone's reliance on information or other content posted on the Services, or transmitted to participants. We reserve the right, but We have no obligation, to monitor the materials posted in the public areas of the Services. Notwithstanding this right, You remain solely responsible for the content of the photos, profiles (including Your name, image, and likeness), messages, notes, text, information, music, video, advertisements, listings, and other content (the "Content") that You post in the public areas of the Services and in Your private e-mail and/or text messages. We shall have the right to remove any such material that in Our sole opinion violates, or is alleged to violate, the law or this agreement or which might be offensive, illegal, or that might violate the rights, harm, or threaten the safety of Users or others. E-mails sent between You and other participants that are not readily accessible to the general public will be treated by Us as private to the extent required by applicable law.
The Bogart Platform may contain (or You may be sent through the Bogart Platform or the Services) links to other web sites ("Third Party Sites") as well as articles, photographs, text, graphics, pictures, designs, music, sound, video, information, applications, software and other content or items belonging to or originating from third parties (the "Third Party Applications, Software or Content"). Such Third Party Sites and Third Party Applications, Software or Content are not investigated, monitored or checked for accuracy, appropriateness, or completeness by Us, and We are not responsible for any Third Party Sites accessed through the Bogart Platform or any Third Party Applications, Software or Content posted on, available through or installed from the Bogart Platform, including the content, accuracy, offensiveness, opinions, reliability, privacy practices or other policies of or contained in the Third Party Sites or the Third Party Applications, Software or Content. Inclusion of, linking to or permitting the use or installation of any Third Party Site or any Third Party Applications, Software or Content does not imply approval or endorsement thereof by Us. If You decide to leave the Bogart Platform and access the Third Party Sites or to use or install any Third Party Applications, Software or Content, You do so at Your own risk and You should be aware that Our terms and policies no longer govern.
We, Our subsidiaries, officers, directors, employees and our suppliers provide the Bogart Platform and the Services on an "as is" basis and without any warranty or condition, express, implied or statutory. We do not guarantee and do not promise any specific results from use of the Bogart Platform and/or the Services. We, Our subsidiaries, officers, directors, employees and Our suppliers specifically disclaim any implied warranties of title, merchantability, fitness for a particular purpose and non-infringement. Some states do not allow the disclaimer of implied warranties, so the foregoing disclaimer may not apply to You and You may also have other legal rights that vary from state to state. We do not warrant that Your use of the Services will be accurate, complete, reliable, current, secure, uninterrupted, always available, or error-free, or will meet Your requirements, that any defects in the Services will be corrected, or that the Services are free of viruses or other harmful components. We disclaim liability for, and no warranty is made with respect to, connectivity and availability. We cannot guarantee that each User is at least the required minimum age, nor do We accept responsibility or liability for any content, communication or other use or access of the Bogart Platform or the Services by persons under the age of 18 in violation of this Agreement. We are not responsible or liable in any manner for any Content posted on the Bogart Platform or in connection with the Service, whether posted or caused by Users of the Bogart Platform, by Bogart, by third parties or by any of the equipment or programming associated with or utilized in the Bogart Platform or the Services. Although We provide rules for User conduct and postings, We do not control, verify, or monitor and are not responsible for what Users post, transmit or share on the Bogart Platform and are not responsible for any offensive, inappropriate, obscene, unlawful or otherwise objectionable content You may encounter on the Bogart Platform or in connection with any Content. Bogart is not responsible for the conduct, whether online or offline, of any user of the Bogart Platform or Services. It also is possible for others to obtain personal information about You due to Your use of the Bogart Platform or the Services, and that the recipient may use such information to harass or injure You. We are not responsible for the use of any personal information that You disclose on the Bogart Platform or through the Services.
You are solely responsible for Your interactions with other Users. We reserve the right, but have no obligation, to monitor disputes between You and other Users. Please carefully select the type of information that You post on the Bogart Platform or through the Services or release to others. We disclaim all liability, regardless of the form of action, for the acts or omissions of other Participants or Users (including unauthorized users, or "hackers"). Bogart only offers a venue that enables Drivers and Passengers to connect with each other. Bogart does not offer transportation services and Bogart is not a transportation company. We are not involved in the actual transportation provided by Drivers to Passengers. As a result, We have no control over the quality or safety of the transportation that occurs as a result of the Service; nor do We have any control over the truth or accuracy of the of Participants' information listed on the Bogart Platform. We cannot ensure that a Driver or Passenger is who he or she claims to be or that a Driver or Passenger will actually complete an arranged service. We reserve the right to change any and all Content, software and other items used or contained in the Bogart Platform and the Services at any time without notice. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof, or any affiliation therewith, by Bogart or the Bogart Platform.
The Bogart Platform and the Services may be temporarily unavailable from time to time for maintenance or other reasons. Bogart assumes no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, User communications. Bogart is not responsible for any technical malfunction or other problems of any telephone network or service, computer systems, servers or providers, computer or mobile phone equipment, software, failure of email or players on account of technical problems or traffic congestion on the Internet, on the Bogart Platform, on any web site or any combination thereof, including injury or damage to User's or to any other person's computer, mobile phone, or other hardware or software, related to or resulting from using or downloading materials in connection with the Web and/or in connection with the Services.
LIMITATION OF LIABILITY
IN NO EVENT WILL WE, OUR SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES OR OUR SUPPLIERS, BE LIABLE TO YOU FOR ANY INCIDENTAL, CONSEQUENTIAL, OR INDIRECT DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR DELETION, CORRUPTION, LOSS OF DATA, LOSS OF PROGRAMS, FAILURE TO STORE ANY INFORMATION OR OTHER CONTENT MAINTAINED OR TRANSMITTED BY OUR SERVICES, SERVICE INTERRUPTIONS, OR FOR THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES) ARISING OUT OF OR IN CONNECTION WITH BOGART, OUR SERVICES OR THIS AGREEMENT (HOWEVER ARISING, INCLUDING THROUGH NEGLIGENCE) EVEN IF WE OR OUR AGENTS OR REPRESENTATIVES KNOW OR HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WE DO NOT SCREEN THE PARTICIPANTS USING THE SERVICES IN ANY WAY. AS A RESULT, WE WILL NOT BE LIABLE FOR ANY DAMAGES, DIRECT, INDIRECT, INCIDENTAL AND/OR CONSEQUENTIAL, ARISING OUT OF THE USE OF BOGART OR THE SERVICES, INCLUDING, WITHOUT LIMITATION, TO DAMAGES ARISING OUT OF COMMUNICATING AND/OR MEETING WITH OTHER PARTICIPANTS OF BOGART OR THE SERVICES, OR INTRODUCED TO YOU VIA BOGART OR THE SERVICES. SUCH DAMAGES INCLUDE, WITHOUT LIMITATION, PHYSICAL DAMAGES, BODILY INJURY, DEATH AND OR EMOTIONAL DISTRESS AND DISCOMFORT. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY, AND THE LIABILITY OF OUR SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AND SUPPLIERS, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO $100.00. CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
Bogart has no responsibility whatsoever for the actions or conduct of Drivers or Passengers. Bogart has no obligation to intervene in or be involved in any way in disputes that may arise between Drivers, Passengers, or third parties, however they may arise. Responsibility for the decisions you make regarding providing or accepting transportation rest solely with You. It is each Passenger and Driver's responsibility to take reasonable precautions in all actions and interactions with any party they may interact with through use of the services. Bogart may but has no responsibility to screen or otherwise evaluate potential Passengers or users. Users understand and accept that Bogart has no control over the identity or actions of the Passengers and Drivers, and Bogart requests that users exercise caution and good judgment when using the services. Drivers and Passengers use the services at their own risk.
In the event that You have a dispute with one or more Users, You agree to release Bogart (and Our officers, directors, shareholders, agents, subsidiaries, joint ventures, affiliates and employees) from claims, demands and damages (actual and consequential) of every kind and nature, whether known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way connected to such disputes with other Users or to Your use of the Bogart Platform or the Services. You agree to waive all rights and benefits under California Civil Code Section 1542 (or any analogous law of any state in which you are using the Services), which says: "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."
TERM AND TERMINATION
This Agreement is effective upon use of the Bogart Platform or the Services for new Users and upon the posting dates of any subsequent amendments to this Agreement for all current Users. You may terminate Your participation in the Services at any time, for any reason upon receipt by Us of Your written or email notice of termination. Either You or We may terminate Your participation in the Bogart Platform by removing Your Information at any time, for any or no reason, without explanation, effective upon sending written or email notice to the other party. Upon such termination, We will remove all of Your information from Our servers, though We may retain an archived copy of records We have about You as required by law or for legitimate business purposes. We maintain sole discretion to bar Your use of the Services in the future, for any or no reason. Even after Your participation in the Bogart Platform is terminated, this Agreement will remain in effect.
TERMINATION FOR BREACH
Without limiting other remedies, We may terminate Your Participation, remove Your Information, warn Our community of Your actions, issue a warning, and refuse to provide Our services to You if:
1. You breach this Agreement or the documents it incorporates by reference;
2. We are unable to verify or authenticate any information You provide to Us;
3. We believe that Your actions may cause financial loss or legal liability for You, Our users or Us, or third parties or subject Bogart or You or any other User to regulation by any state or local government or regulatory agency; or
4. We suspect that You have engaged in fraudulent activity in connection with the Bogart Platform or the Services.
AGREEMENT TO ARBITRATE ALL DISPUTES AND LEGAL CLAIMS
Important Note Regarding this Section:
• Arbitration does not limit or affect the legal claims you may bring against Bogart. Agreeing to arbitration only affects where any such claims may be brought and how they will be resolved..
• Arbitration is a process of private dispute resolution that does not involve the civil courts, a civil judge, or a jury. Instead, the parties’ dispute is decided by a private arbitrator selected by the parties using the process set forth herein. Other arbitration rules and procedures are also set forth herein.
• Unless the law requires otherwise, as determined by the Arbitrator based upon the circumstances presented, you will be required to split the cost of any arbitration with Bogart.
•IMPORTANT: This arbitration provision will require you to resolve any claim that you may have against Bogart on an individual basis pursuant to the terms of the Agreement unless you choose to opt out of the arbitration provision. This provision will preclude you from bringing any class, collective, or representative action against Bogart. It also precludes you from participating in or recovering relief under any current or future class, collective, or representative action brought against Bogart by someone else.
WHETHER TO AGREE TO ARBITRATION IS AN IMPORTANT BUSINESS DECISION. IT IS YOUR DECISION TO MAKE, AND YOU SHOULD NOT RELY SOLELY UPON THE INFORMATION PROVIDED IN THIS AGREEMENT AS IT IS NOT INTENDED TO CONTAIN A COMPLETE EXPLANATION OF THE CONSEQUENCES OF ABRITRATION. YOU SHOULD TAKE REASONABLE STEPS TO CONDUCT FURTHER RESEARCH AND TO CONSULT WITH OTHERS — INCLUDING BUT NOT LIMITED TO AN ATTORNEY — REGARDING THE CONSEQUENCES OF YOUR DECISION, JUST AS YOU WOULD WHEN MAKING ANY OTHER IMPORTANT BUSINESS OR LIFE DECISION.
1. HOW THIS ARBITRATION PROVISION APPLIES.
This Arbitration Provision is governed by the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (the “FAA”) and evidences a transaction involving commerce. This Arbitration Provision applies to any dispute arising out of or related to this Agreement or termination of the Agreement and survives after the Agreement terminates. Nothing contained in this Arbitration Provision shall be construed to prevent or excuse You from utilizing any procedure for resolution of complaints established in this Agreement (if any), and this Arbitration Provision is not intended to be a substitute for the utilization of such procedures.
Except as otherwise provided, this Arbitration Provision is intended to apply to the resolution of disputes that otherwise would be resolved in a court of law or before a forum other than arbitration. This Arbitration Provision requires all such disputes to be resolved only by an arbitrator through final and binding arbitration on an individual basis only and not by way of court or jury trial, or by way of class, collective, or representative action.
Such disputes include without limitation disputes arising out of or relating to interpretation or application of this Arbitration Provision, including the enforceability, revocability or validity of the Arbitration Provision or any portion of the Arbitration Provision. All such matters shall be decided by an Arbitrator and not by a court or judge.
Except as otherwise provided, this Arbitration Provision also applies, without limitation, to disputes arising out of or related to this Agreement and disputes arising out of or related to Your relationship with Bogart, including termination of the relationship. This Arbitration Provision also applies, without limitation, to disputes regarding any city, county, state or federal wage-hour law, trade secrets, unfair competition, compensation, breaks and rest periods, expense reimbursement, termination, harassment and claims arising under the Uniform Trade Secrets Act, Civil Rights Act of 1964, Americans With Disabilities Act, Age Discrimination in Employment Act, Family Medical Leave Act, Fair Labor Standards Act, Employee Retirement Income Security Act (except for claims for employee benefits under any benefit plan sponsored by Bogart and covered by the Employee Retirement Income Security Act of 1974 or funded by insurance), Genetic Information Non-Discrimination Act, and state statutes, if any, addressing the same or similar subject matters, and all other similar federal and state statutory and common law claims.
This Agreement is intended to require arbitration of every claim or dispute that lawfully can be arbitrated, except for those claims and disputes which by the terms of this Agreement are expressly excluded from the Arbitration Provision.
2. LIMITATIONS ON HOW THIS AGREEMENT APPLIES.
The disputes and claims set forth below shall not be subject to arbitration and the requirement to arbitrate set forth in this Section of this Agreement shall not apply:
Claims for workers compensation, state disability insurance and unemployment insurance benefits;
Regardless of any other terms of this Arbitration Provision, claims may be brought before and remedies awarded by an administrative agency if applicable law permits access to such an agency notwithstanding the existence of an agreement to arbitrate. Such administrative claims include without limitation claims or charges brought before the Equal Employment Opportunity Commission (www.eeoc.gov), the U.S. Department of Labor June 20, 2014 15 (www.dol.gov), the National Labor Relations Board (www.nlrb.gov), or the Office of Federal Contract Compliance Programs (www.dol.gov/esa/ofccp). Nothing in this Arbitration Provision shall be deemed to preclude or excuse a party from bringing an administrative claim before any agency in order to fulfill the party's obligation to exhaust administrative remedies before making a claim in arbitration;
Disputes that may not be subject to predispute arbitration agreement as provided by the Dodd-Frank Wall Street Reform and Consumer Protection Act (Public Law 111-203) are excluded from the coverage of this
Disputes regarding the Intellectual Property Rights of the parties;
This Arbitration Provision shall not be construed to require the arbitration of any claims against a contractor that may not be the subject of a mandatory arbitration agreement as provided by section 8116 of the Department of Defense ("DoD") Appropriations Act for Fiscal Year 2010 (Pub. L. 111-118), section 8102 of the Department of Defense ("DoD") Appropriations Act for Fiscal Year 2011 (Pub. L. 112-10, Division A), and their implementing regulations, or any successor DoD appropriations act addressing the arbitrability of claims.
3. SELECTING THE ARBITRATOR AND LOCATION OF THE ARBITRATION.
The Arbitrator shall be selected by mutual agreement of Bogart and You. Unless You and Bogart mutually agree otherwise, the Arbitrator shall be an attorney licensed to practice in the location where the arbitration proceeding will be conducted or a retired federal or state judicial officer who presided in the jurisdiction where the arbitration will be conducted. If the Parties cannot agree on an Arbitrator, then an arbitrator will be selected using the alternate strike method from a list of five (5) neutral arbitrators provided by JAMS (Judicial Arbitration & Mediation Services). You will have the option of making the first strike. If a JAMS arbitrator is used, then the JAMS Streamlined Arbitration Rules & Procedures rules will apply. Those rules are available here:
The arbitration proceeding take place exclusively in Contra Costa County, California, unless each party to the arbitration agrees in writing otherwise.
4. STARTING THE ARBITRATION.
All claims in arbitration are subject to the same statutes of limitation that would apply in court. The party bringing the claim must demand arbitration in writing and deliver the written demand by hand or first class mail to the other party within the applicable statute of limitations period. The demand for arbitration shall include identification of the Parties, a statement of the legal and factual basis of the claim(s), and a specification of the remedy sought. Any demand for arbitration made to Bogart shall be provided to Arbitration Department, Bogart, Inc., 16835 Algonquin Street, Suite 123, Huntington Beach, CA 92649. The arbitrator shall resolve all disputes regarding the timeliness or propriety of the demand for arbitration. A party may apply to a court of competent jurisdiction for temporary or preliminary injunctive relief in connection with an arbitrable controversy, but only upon the ground that the award to which that party may be entitled may be rendered ineffectual without such provisional relief.
5. HOW ARBITRATION PROCEEDINGS ARE CONDUCTED.
In arbitration, the Parties will have the right to conduct adequate civil discovery, bring dispositive motions, and present witnesses and evidence as needed to present their cases and defenses, and any disputes in this regard shall be resolved by the Arbitrator.
You and Bogart agree to resolve any dispute in arbitration on an individual basis only, and not on a class, collective, or private attorney general representative action basis. The Arbitrator shall have no authority to consider or resolve any claim or issue any relief on any basis other than an individual basis. The Arbitrator shall have no authority to consider or resolve any claim or issue any relief on a class, collective, or representative basis. If at any point this provision is determined to be unenforceable, the parties agree that this provision shall not be severable, unless it is determined that the Arbitration may still proceed on an individual basis only.
While Bogart will not take any retaliatory action in response to any exercise of rights You may have under Section 7 of the National Labor Relations Act, if any, Bogart shall not be precluded from moving to enforce its rights under the FAA to compel arbitration on the terms and conditions set forth in this Agreement.
6. PAYING FOR THE ARBITRATION.
In the event of Arbitration, the prevailing party is entitled to recover reasonable attorney’s fees. In all cases where required by law, Bogart will pay the Arbitrator's and arbitration fees. If under applicable law Bogart is not required to pay all of the Arbitrator's and/or arbitration fees, such fee(s) will be apportioned equally between the Parties or as otherwise required by applicable law. Any disputes in that regard will be resolved by the Arbitrator.
7. THE ARBITRATION HEARING AND AWARD.
The Parties will arbitrate their dispute before the Arbitrator, who shall confer with the Parties regarding the conduct of the hearing and resolve any disputes the Parties may have in that regard. Within 30 days of the close of the arbitration hearing, or within a longer period of time as agreed to by the Parties or as ordered by the Arbitrator, any party will have the right to prepare, serve on the other party and file with the Arbitrator a brief. The Arbitrator may award any party any remedy to which that party is entitled under applicable law, but such remedies shall be limited to those that would be available to a party in his or her individual capacity in a court of law for the claims presented to and decided by the Arbitrator, and no remedies that otherwise would be available to an individual in a court of law will be forfeited by virtue of this Arbitration Provision. The Arbitrator will issue a decision or award in writing, stating the essential findings of fact and conclusions of law. Except as may be permitted or required by law, as determined by the Arbitrator, neither a party nor an Arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of all Parties. A court of competent jurisdiction shall have the authority to enter a judgment upon the award made pursuant to the arbitration. The Arbitrator shall not have the power to commit errors of law or legal reasoning, and the award may be vacated or corrected on appeal to a court of competent jurisdiction for any such error.
8. YOUR RIGHT TO OPT OUT OF ARBITRATION.
Arbitration is not a mandatory condition of your contractual relationship with Bogart. If You do not want to be subject to this Arbitration Provision, You may opt out of this Arbitration Provision by notifying Bogart in writing of Your desire to opt out of this Arbitration Provision, either by (1) sending, within 30 days of the date this Agreement is executed by You, electronic mail to firstname.lastname@example.org, stating Your name and intent to opt out of this Arbitration Provision or (2) by sending a letter by U.S. Mail, or by any nationally recognized delivery service (e.g, UPS, Federal Express, etc.) to:
16835 Algonquin Street, Suite 123
Huntington Beach, CA 92649
In order to be effective, the letter under option (2) must clearly indicate Your intent to opt out of this Arbitration Provision, and must be dated and signed. The envelope containing the letter must be received (if delivered by hand) or post-marked within 30 days of the date this Agreement is executed by You. Your writing opting out of this Arbitration Provision, whether sent by (1) or (2), will be filed with a copy of this Agreement and maintained by Bogart. Should You not opt out of this Arbitration Provision within the 30-day period, You and Bogart shall be bound by the terms of this Arbitration Provision. You have the right to consult with counsel of Your choice concerning this Arbitration Provision. You understand that You will not be subject to retaliation if You exercise Your right to assert claims or opt-out of coverage under this Arbitration Provision.
9. ENFORCEMENT OF THIS AGREEMENT.
This Arbitration Provision is the full and complete agreement relating to the formal resolution of disputes arising out of this Agreement. Except as stated in subsection v, above, in the event any portion of this Arbitration Provision is deemed unenforceable, the remainder of this Arbitration Provision will be enforceable. By clicking “I accept”, You expressly acknowledge that You have read, understood, and taken steps to thoughtfully consider the consequences of this Agreement, that You agree to be bound by the terms and conditions of the Agreement, and that You are legally competent to enter into this Agreement with Bogart.
You agree not to use any technical, financial, strategic and other proprietary and confidential information relating to Bogart's business, operations and properties ("Confidential Information") disclosed to You by Bogart for Your own use or for any purpose other than as contemplated herein. You shall not disclose or permit disclosure of any Confidential Information to third parties. You agree to take all reasonable measures to protect the secrecy of and avoid disclosure or use of Confidential Information of Bogart in order to prevent it from falling into the public domain. Notwithstanding the above, You shall not have liability to Bogart with regard to any Confidential Information which You can prove:
1. was in the public domain at the time it was disclosed by Bogart or has entered the public domain through no fault of Yours;
2. was known to You, without restriction, at the time of disclosure, as demonstrated by files in existence at the time of disclosure;
3. is disclosed with the prior written approval of Bogart;
4. becomes known to You, without restriction, from a source other than Bogart without breach of this Agreement by You and otherwise not in violation of Bogart's rights; or
5. is disclosed pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided, however, that You shall provide prompt notice of such court order or requirement to Bogart to enable Bogart to seek a protective order or otherwise prevent or restrict such disclosure.
You and Bogart are independent contractors, and no agency, partnership, joint venture, employee-employer or franchisor-franchisee relationship is intended or created by this Agreement.
Except as explicitly stated otherwise, any notices to Bogart shall be given by certified mail, postage prepaid and return receipt requested to Bogart, Inc., 16835 Algonquin Street, Suite 123, Huntington Beach, CA 92649, and any notices to You shall be provided to You through the Bogart Platform or given to You via the email address You provide to Bogart during the registration process or via any profile information updates provided by You. In such case, notice shall be deemed given 3 days after the date that the email was sent. Alternatively, We may give You notice by certified mail, postage prepaid and return receipt requested, to the address provided to Bogart during the registration process or via any profile information updates provided by You. In such case, notice shall be deemed given 5 days after the date of mailing.
To resolve a complaint regarding the Service, You should first contact Our Customer Service Department through email@example.com.
This Agreement shall be governed by the laws of the State of California without regard to choice of law principles. If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced. You agree that this Agreement and all incorporated agreements may be automatically assigned by Bogart, in Our sole discretion in accordance with the "Notices" section of this Agreement. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. Our failure to act with respect to a breach by You or others does not waive Our right to act with respect to subsequent or similar breaches. This Agreement sets forth the entire understanding and agreement between the User and Bogart with respect to the subject matter hereof. Sections referring to Services, Licenses, Liability Limit, Indemnity, and Resolution of Disputes shall survive any termination or expiration of this Agreement.