SpotOn Parking Terms of Service
PLEASE READ THESE TERMS OF SERVICE CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS.
Last Updated November 20, 2014
SpotOn Parking LLC. (“SpotOn”, “we”, “us”, or “our”) provides a marketplace, using its proprietary technology and software, to enable owners (“Spot Owners”, “you”, “your”) who have private parking spots (“Spots”) and drivers seeking to rent such spots (“Drivers,” “you”, “your”) to arrange and transact the sharing of Spots (collectively, the “Services”). The Services include and are accessible at the website http://www.spotonparking.com (“Site”) and the application for mobile devices (“App”).
SpotOn reserves the right, at its sole discretion, to modify the Services or the Terms at any time and without prior notice. If we modify the Terms, we will post the date of the modification and the modified version of the Terms on the Site or via the App. By continuing to access or use the Services after we have posted a modification, you are indicating that you agree to be bound by the modified Terms. If the modified Terms are not acceptable to you, your only recourse is to cease using the Services.
In order to access and use the Services you must register to create a SpotOn account (“Account”) and become a SpotOn member (“Member”). When you set up an Account and use the Services you must provide accurate and complete information and keep your Account information updated. Account information requested may include but is not limited to, your name, phone number, email address, physical address, billing information (such as bank account and/or credit card information), photo or Google street view of your parking spot (if you are a Spot Owner), and vehicle information, such as vehicle license plate number and vehicle make, model, color, and year (if you are a Driver). Account holders may be both Spot Owners and Drivers. Do not use another person’s Account or registration information for the Services without permission. You must notify us immediately of any breach of security or unauthorized use of your Account. You may delete your Account by contacting us or through the Account settings. We reserve the right to access your Account and to read, preserve, and disclose any information as we reasonably believe is necessary to (i) satisfy any applicable law, regulation, legal process or governmental request, (ii) enforce this TOS, including investigation of potential violations hereof, (iii) detect, prevent, or otherwise address fraud, security or technical issues, (iv) respond to user support requests, (v) provide any services related to your use of the Services, or (vi) protect our rights, property or safety, our users and the public. This includes exchanging information with other companies, organizations and insurance providers for such purposes as fraud protection and spam/malware prevention.
You may not have more than one (1) active Account. SpotOn reserves the right to suspend or terminate your Account and your access to the Services at any time. You are responsible for safeguarding your password. You agree that you will not disclose your password to any third party and that you will take sole responsibility for any activities or actions under your Account, whether or not you have authorized such activities or actions.
You may also register by logging into your account with certain third party social networking sites, such as Facebook (“SNS”). By doing so you are allowing SpotOn to access your information from such SNS and use it for such integration purposes. You may edit privacy settings for the information that appears on the SNS.
HOW TO USE THE SERVICE
SPOT OWNERS: After registering for the Service and setting up an Account, list your Spot on the Site or App (a “Listing”), including address and photo. Set the date(s) and time(s) of the Spot’s availability (“Sharing Period”) and set your suggested donation (“Parking Rate”). If you do not set a Parking Rate, the default rate will apply. SpotOn may suggest a monthly parking rate for your Spot(s) to be applicable to Subscribers (defined below); unless you object to such rate in writing, it will be the rate suggested to Subscribers. You may change your Rental Period and Parking Rate at any time; however, any changes made to your Spot’s availability or Parking Rate will not apply to any driver who parked at the already determined availability and price. The Spot Owners will honor all rental reservations and ensure the Spot’s availability during the Rental Period.
DRIVERS: Search for Spots based on your current geographical location or an address using the App or the Site, and register for the Service and set up an Account. When you park you must “Check-In” on the App and you will be prompted to enter your payment information if this information has not yet been added to your Account. When you leave the Spot you must “Check-Out” on the App at which time you will be charged for the duration of your use of the Spot, unless you are a Subscriber. You are a “Subscriber” if you have signed up for long term parking (e.g. monthly) with SpotOn. As a Subscriber, you pay a fixed monthly fee in advance for the right to park in the Spot(s) for a mutually agreed-upon duration (which is your Rental Period), subject to any restrictions we inform you from time to time. If you have not checked out and removed your vehicle by the end of the Spot’s Rental Period or during any restricted period (if you are a Subscriber), you may be towed by a third-party towing company. In such event, towing charges will be imposed and other penalties may apply. Drivers are solely responsible for all such charges. While we may send you reminders of the impending expiration time as a courtesy, you are fully responsible for checking out and removing your vehicle on or before the end of the Rental Period. Drivers agree and understand that you are entering into an agreement with the Spot Owner, and you agree to accept any terms, conditions, rules, and restrictions associated with such Spot imposed by the Spot Owner. Drivers shall not use the App while operating a motor vehicle. DRIVERS WHO USE THE SPOTS ASSUME ALL RISK OF LOSS OR DAMAGE TO VEHICLES AND PERSONS IN CONNECTION WITH SUCH USE. THE SPOT OWNERS, SPOTON, AND THEIR AFFILIATES AND AGENTS ARE NOT RESPONSIBLE FOR, AND ASSUME NO LIABILITY FOR, FIRE, THEFT, DAMAGE OR LOSS TO ANY VEHICLE, OR FOR INJURY TO ANY PERSON OR PROPERTY AS A RESULT OF USE OF THE SPOTS. THESE TERMS, AND POSTED PARKING RULES AND INSTRUCTIONS MUST BE FOLLOWED TO AVOID TOWING, FINES AND POSSIBLE CRIMINAL PENALTIES AND LOSS OF THE OPPORTUNITY TO PARK IN THE SPOTS.
PAYMENT & FEES
“Parking Fees” consist of the Parking Rate displayed in each Listing or the rate mutually-agreed upon between Subscriber and SpotOn, any taxes, and any penalty assessed by SpotOn on behalf of the Spot Owner for overstaying the Rental Period. Drivers hereby authorize SpotOn and its payment processing providers to charge the Parking Fees on the credit card provided by Drivers. Subscribers authorize SpotOn to automatically charge the Parking Fees monthly in advance. Parking Fees are non-refundable. Please note that if you park at a Spot, the Parking Rate displayed is a suggested donation and we encourage but do not require you to make such donation.
As an agent of the Owners, SpotOn will collect the Parking Fees from Drivers. Within thirty (30) days at the end of each calendar month, SpotOn will remit to each Spot Owner an amount equal to the Parking Fees generated from his/her Listing, less a SpotOn’s service fee which is a percentage of the Parking Fees as announced by SpotOn from time to time (or a different amount mutually agreed by SpotOn and the Owner) and any credit card processing charges. Owners are responsible for paying the authority any applicable taxes on the payments received from SpotOn, and will indemnify and hold harmless SpotOn against any claim arising out of Owner’s failure to pay such taxes.
SpotOn operates a subscription program whereby Subscribers may park for an unlimited duration during the subscription period in one or multiple Spots for a fixed Parking Fee (“Subscription Fee”). Each Owner will receive the lower of (i) the hourly Parking Rate multiplied by the hours parked in his Spot by a particular Subscriber; or (ii) a percentage of the Subscription Fee corresponding to the amount of time the Spot is occupied by that particular Subscriber.
ACCESSING & DOWNLOADING THE APPLICATION FROM iTUNES
The following applies to any App accessed through or downloaded from the Apple App Store (“App Store Sourced App”):
You acknowledge and agree that (i) these Terms are concluded between you and SpotOn only, and not Apple; and (ii) SpotOn, not Apple, is solely responsible for the App Store Sourced App and content thereof. Your use of the App Store Sourced App must comply with the App Store Terms of Services. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced App. In the event of any failure of the App Store Sourced App to conform to any applicable warranty, you may notify Apple, and Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced App.
You acknowledge that Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced App or your possession and use of the App Store Sourced App, including but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. You acknowledge that, in the event of any third party claim that the App Store Sourced App or your possession and use of that App Store Sourced App infringes that third party’s intellectual property rights, SpotOn not Apple will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms.
You acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms as related to your license of the App Store Sourced App, and that, upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms as related to your license of the App Store Sourced App against you as a third party beneficiary thereof. Without limiting these Terms, you must comply with all applicable third party terms of agreement when using the App Store Sourced App.
From time to time uses of the Services may post content, including but not limited to feedback on other users and the Services (“User Content”). User Content is the sole responsibility of the person who originated such user Content. Any user Content and all other content that you access by you using the Services (collectively, “Content”) is at your own risk. You may delete or remove your user Content upon which time it will be removed from the Services, but it may persist in backup copies for a reasonable period of time.
We are not responsible for anything another user posts on the Site or App. However, we reserve the right to (i) remove, edit, or modify any Content whenever we want without notice to you for any reason (including but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content, or if we are concerned that you may have violated these Terms), or for no reason at all; and (ii) to remove or block any Content from the Services. We have no control over the truth or accuracy of our users.
You grant each user of the Services (including apps downloaded through third party services) a worldwide, non-exclusive, non-sublicensable, and non-transferable license to use (i.e., to download and display locally or on a device) Content solely for personal purposes. By submitting user Content through the Services, you grant us a worldwide, non-exclusive, royalty-free, fully paid, sublicensable, and transferable license to use, edit, modify, reproduce, distribute, prepare derivative works of, display, perform, and otherwise fully exploit the user Content in connection with the Services and our (and our successors’ and assigns’) businesses, including without limitation for promoting and redistributing part or all of the Services (and derivative works thereof) in any media formats and through any media channels (including, without limitation, APIs, third party websites, and feeds).
DISCLAIMERS & WARRANTIES
YOU USE THE SERVICES AT YOUR SOLE RISK. THE SERVICES, SITE, APP, AND CONTENT ARE PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, SPOTON EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF THE COURSE OF DEALING OR USAGE OF TRADE. SPOTON MAKES NO WARRANTY THAT THE SERVICES OR THE SPOTS WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, OR SECURE BASIS. SPOTON MAKES NO WARRANTY REGARDING THE LISTINGS, SPOTS, OR SPOT AVAILABILITY. SPOTON DOES NOT WARRANT THAT YOUR VEHICLE OR YOUR SPOTS WILL BE SAFE OR PROTECTED FROM DAMAGES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM SPOTON OR THROUGH THE SITE, APP, SERVICES, OR CONTENT, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. YOU UNDERSTAND THAT SPOTON DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE SERVICES OR TO REVIEW OR VISIT ANY SPOTS. SPOTON MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OF THE SERVICES.
LIMITATION OF LIABILITY
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE SERVICES, YOUR LISTING, OR SHARING OF ANY SPOTS VIA THE SITE OR APP REMAINS WITH YOU. SPOTON AND ITS SUPPLIERS WILL NOT BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES, OR FOR ANY DAMAGES FOR PROPERTY, PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THE SERVICES, OR FROM THE USE OF OR INABILITY TO USE THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT SPOTON HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. EXCEPT FOR OUR OBLIGATIONS TO PAY AMOUNTS TO APPLICABLE SPOT OWNERS PURSUANT TO THESE TERMS, IN NO EVENT WILL SPOTON’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS AND YOUR USE OF THE SERVICES OR CONTENT, OR FROM THE USE OF OR INABILITY TO USE THE SERVICES OR CONTENT, AND IN CONNECTION WITH ANY INTERACTIONS WITH ANY OTHER MEMBERS, EXCEED THE AMOUNTS YOU HAVE PAID OR OWE FOR A SPOT SHARING VIA THE SITE OR APP AS A DRIVER IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY, OR IF YOU ARE A SPOT OWNER, THE AMOUNTS PAID BY SPOTON TO YOU IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY, OR ONE HUNDRED DOLLARS ($100), IF NO SUCH PAYMENTS HAVE BEEN MADE, AS APPLICABLE. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN SPOTON AND YOU. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
You agree to release, defend, indemnify, and hold SpotOn and its affiliates and subsidiaries, and their officers, directors, employees, and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including without limitation, reasonable legal and accounting fees, arising out of or in any way connected with (a) your access to or use of the Services or your violation of these Terms; (b) your user Content; (c) your interaction with any user; (d) your sharing of any Spot; (e) your creation of a Listing; or (f) the use or sharing of a Spot by you, including but not limited to any injuries, losses, or damages (compensatory, direct, incidental, consequential, or otherwise) of any kind arising in connection with or as a result of a sharing, listing, or use of a Spot.
The Services (including the Site and the App and the software and technology used to operate the Services, but excluding user Content) and all intellectual property therein, are owned by SpotOn and its licensors. You shall not sell, license, rent, reverse engineer, decompile, or otherwise use or exploit any part of the Service, Site, App, or Content for commercial use or in any way.
SpotOn is not an owner, operator, or provider of Spots or Listing, and we do not own, sell, furnish, provide, rent, and/or control Spots or Listing. SpotOn’s responsibilities are limited to: (i) facilitating the availability and sharing process of Spots; (ii) serving as the limited agent of Spot Owners for the purpose of accepting payments from Drivers on behalf of the Spot Owner and for any other capacity mutually agreed upon between Spot Owners and SpotOn. Each Spot Owner hereby appoints SpotOn as the Spot Owner’s agent solely for the forgoing purposes.
You understand and agree that SpotOn is not a party to any agreements entered into between Spot Owners and Drivers. SpotOn has no control over the conduct of Spot Owners, Drivers, and other users of the Services, and disclaims all liability in this regard.
SpotOn does not endorse any Drivers or any Spot. In addition, although these Terms require Members to provide accurate information, we do not attempt to confirm, and do not confirm, any Member’s purported identity. We are not responsible for any damage or harm resulting from your interactions with other Members. By using the Services you agree that any legal remedy or liability that you seek to obtain for actions or omissions of other Members or other third parties will be limited to a claim against the particular Members or other third parties who caused you harm, and you agree not to attempt to impose liability on, or seek any legal remedy from SpotOn with respect to such actions or omissions. This limitation shall not apply to any claim by a Spot Owner against SpotOn regarding the remittance of payments received from a Driver on behalf of a Spot Owner, which instead shall be subject to the limitations described in the section below entitled “Limitation of Liability.”
TERMINATION & ACCOUNT CANCELLATION
We may, in our discretion and without liability to you, with or without cause, with or without prior notice, and at any time: (a) terminate these Terms or your access to the Services; and (b) deactivate or cancel your Account. Upon termination we will promptly pay Spot Owners any amounts we owe, which we are legally obligated to pay. In the event SpotOn terminates these Terms, or your access to the Services, or deactivates or cancels your Account, Drivers will remain liable for all amounts due hereunder. You may cancel your Account at any time; provided, however, if you are a Spot Owner with a Subscriber in your Spot, you must give us at least 30-day written advanced notice to terminate your Spot listing. Notwithstanding anything to the contrary, (i) if you are a Subscriber, you must notify us in writing at least 15 days prior to terminating your Subscription, and (ii) we must notify you in writing at least 15 days prior to terminating your Subscription, unless we need to terminate sooner to mitigate damages, or if the Spot Owner fails to give us advanced notice that the Spot is no longer available. Please note that if your Account is cancelled, we do not have an obligation to delete or return to you any user Content you have posted to the Site or App.
These Terms constitute the entire and exclusive understanding and agreement between SpotOn and you regarding the Services and Content, and these Terms supersede and replace any and all prior oral or written understandings or agreements between SpotOn and you regarding the Services or Content. You may not assign or transfer these Terms, by operation of law or otherwise, without SpotOn’s prior written consent. SpotOn may assign or transfer these Terms, at its sole discretion, without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns. The failure of SpotOn to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of SpotOn. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise. If for any reason an arbitrator or a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect. Any notices or other communications permitted or required hereunder, including those regarding modifications to these Terms, will be in writing and given by SpotOn (i) via email to the address that you provide, the date of receipt to be deemed the date on which such notice is transmitted; or (ii) by posting to the Site or via the App.
These Terms will be interpreted in accordance with the laws of the State of California and the United States of America, without regard to its conflict-of-law provisions. You and SpotOn agree to submit to the personal jurisdiction of a state court located in Santa Clara County, California or a United States District Court, Northern District of California located in Santa Clara County, California for any actions for which the parties retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation, or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights.
If you have any questions about these Terms, please contact SpotOn at firstname.lastname@example.org.