5.0 Information We Collect

In order to provide the services to you, we collect certain information. This may include:

• Geolocation data from the Vehicle including the location, speed, route, and mileage of the Vehicle - we have the ability to know where the Vehicle is at alltimes and can remotely disable the Vehicle

• Our Vehicles may be equipped with Event Data Recorders, Airbag Control Modules and/or other devices that record data from the Vehicle and its operation

• In addition there may be third party operators of the GPS or telematics systems, or affiliates of such third parties who may also have access to the location of each Vehicle or access to other information supplied by the GPS or telematics system in each Vehicle.

• Data from your phone or computer collected through Our app or website

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5.1 You acknowledge and agree that you do not have any expectation of privacy while using a Vehicle, including location privacy, route privacy, speed privacy or privacy in a Vehicle’s operational systems.

5.2 We retain the right to any and all data generated by the Vehicle and app.

5.3 We may collect and use information in an aggregated and anonymized manner about your use of the services, including to compile statistical and performance information related to the provision and operation of the services. We retain all right, title and interest in the information and all intellectual property rights. You acknowledge that We collect this information and You agree that we may make such information publicly available, and use such information (to the extent and in the manner required by applicable law or regulation) for purposes of analysis, marketing, and improving the services provided that such data and information does not identify You. Additionally, We may, in Our sole discretion, sell the information.

5.4 Any maps, directions and location advice provided by the app or in-vehicle navigation systems may not be accurate and are not guaranteed by Us or any other party. Please rely on common sense and best judgment when operating any Vehicle and do not rely solely on the app or navigation system.

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6.0 Changes to the Terms

We may change the Terms at any time by providing you notice through the app and website. These changes could include modifying, suspending, or discontinuing the services and access to vehicles at any time. If you do not accept the changes to the Terms your access will be terminated and you must stop using the services.

7.0 Disclaimers and Limits of Liability

TO THE FULLEST EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES WILL SWAY, ITS AFFILIATES OR LICENSEES, AND ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SHAREHOLDERS, ASSIGNS, AND SUCCESSORS-IN-INTEREST BE LIABLE TO ANY MEMBER OR ANY THIRD PARTY FOR INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS) ARISING FROM OR RELATED TO THESE TERMS AND CONDITIONS, ACTS OF GOD, THE USE OF SWAY VEHICLES, AND/OR SWAY’S SERVICE.

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TO THE FULLEST EXTENT PERMITTED BY LAW, SWAY HEREBY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, AND COVENANTS OF ANY KIND, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.

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WE SHALL NOT BE LIABLE TO YOU FOR ANY DAMAGES RESULTING FROM YOUR USE OF THE SERVICES, THE LOCATION AND ITS CONDITIONS AND PERSONAL AND THE VEHICLE, INCLUDING ANY DEATH, INJURY OR DAMAGE THAT MAY RESULT THEREFROM. WE ARE NOT LIABLE FOR ANY AND ALL LOSSES INCURRED OR SUSTAINED BY, OR IMPOSED UPON, US BASED UPON, ARISING OUT OF, WITH RESPECT TO, OR BY REASON OF YOUR CRIMINAL, WILLFUL, OR GROSSLY NEGLIGENT ACTION OR OMISSION IN THE OPERATION OF A VEHICLE OR IN CONNECTION WITH THE SERVICES. WE ARE NOT LIABLE FOR ANY PERSON’S LOST, STOLEN, OR DAMAGED PROPERTY IN AND FROM AN VEHICLE. THIS SECTION WILL SURVIVE TERMINATION OF THIS AGREEMENT.

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IN NO EVENT WILL OUR TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED THE AMOUNT PAID BY YOU FOR OUR SERVICES DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO THE CLAIM, OR, IF YOU HAVE NOT PAID US FOR THE USE OF OUR SERVICES DURING SUCH PERIOD, THE AMOUNT OF $50. THIS SECTION WILL SURVIVE TERMINATION OFTHIS AGREEMENT.

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Without limiting the generality of the foregoing, We make no warranty that the Services will meet Your requirements or that the Services will be uninterrupted, timely, secure, or error free or that defects in the Services will be corrected. We make no warranty as to the results that may be obtained from the use of the Services or as to the accuracy or reliability of any information obtained through the Services. No advice or information, whether oral or written, obtained by You through the Services or from Us or Our subsidiaries/other affiliated companies shall create any warranty. We disclaim all equitable indemnities.

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8.0 We May Disagree

These Terms contain dispute resolution and arbitration provisions, including a class action waiver, that affect your rights. You may have the right to opt out of certain provisions. 

Please Read This Provision Carefully. It Affects Your Legal Rights.

This Provision facilitates the prompt and efficient resolution of any dispute (e.g., claim or controversy, whether based in contract, statute, regulation, ordinance, tort – including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence – or any other legal or equitable theory, and includes the validity, enforceability or scope of this Provision (with the exception of the enforceability of the Class Action Waiver clause below) that may arise between You and Us. Effectively, then, “dispute” is given the broadest meaning enforceable by law and includes any claims against other parties relating to services or products provided or billed to You (such as Our licensors, suppliers, dealers or third-party vendors) whenever You also assert

claims against Us in the same proceeding.

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This Provision provides that all disputes between You and Us shall be resolved by binding arbitration because acceptance of These Terms constitutes a waiver of Your right to litigation claims and all opportunity to be heard by a judge or jury. To be clear, there is no judge or jury in arbitration, and court review of an arbitration award is limited. The arbitrator must follow this agreement and can award the same damages and relief as a court (including attorney’s fees). You may, however, opt-out of this Provision which means You would have a right or opportunity to bring claims in a court, before a judge or jury, and/or to participate in or be represented in a case filed in court by others (including, but not limited to, class actions). EVERYONE AGREES THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, AS DEFINED ABOVE, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT IN ACCORDANCE WITH THIS PROVISION.

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Pre-Arbitration Claim Resolution For all disputes, whether pursued in court or arbitration, you must first give Us an opportunity to resolve the dispute which is first done by emailing to Us at support@swaymobility.com the following information: (1)your name, (2) your address, (3) a written description of your claim, and (4) a description of the specific relief you seek. If We do not resolve the dispute within 45 days after receiving your notification, than you may pursue your dispute in arbitration. You may pursue your dispute in a court only under the circumstances described below.

Exclusions from Arbitration/Right to Opt Out 

Notwithstanding the above, Your or We may choose to pursue a dispute in court and not by arbitration if: (a) The dispute qualifies for initiation in small claims court; or (b) YOU OPT-OUT OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST CONSENT TO THIS AGREEMENT (the “Opt-Out Deadline”). You may opt-out of this provision by emailing Us at support@swaymobility.com the following information: (1) your name; (2) your address; (3) a clear statement that you do not wish to resolve disputes with Us through arbitration. Any opt-out request received after the Opt-Out Deadline will not be valid and you must pursue your dispute in arbitration or small claims court.

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Arbitration Procedures

If this Provision applies and the dispute is not resolved as provided above (Pre-Arbitration Claim Resolution) either you or We may initiate arbitration proceedings. The American Arbitration Association (“AAA”), www.adr.org, or JAMS, www.jamsadr.com, will arbitrate all disputes, and the arbitration will be conducted before a single arbitrator. The arbitration shall be commenced as an individual arbitration, and shall in no event be commenced as a class arbitration. All issues shall be for the arbitrator to decide, including the scope of this provision. 

For arbitration before AAA, for Disputes of less than $75,000, the AAA’s Supplementary Procedures for Consumer-Related Disputes will apply; for Disputes involving $75,000 or more, the AAA’s Commercial Arbitration Rules will apply. In either instance, the AAA’s Optional Rules For Emergency Measures Of Protection shall apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. For arbitration before JAMS, the JAMS

Comprehensive Arbitration Rules & Procedures and the JAMS Recommended Arbitration Discovery Protocols For Domestic, Commercial Cases will apply. The JAMS rules are available at www.jamsadr.com or by calling 1-800-352-5267. This Provision governs in the event it conflicts with the applicable arbitration rules. Under no circumstances will class action procedures or rules apply to the arbitration.

Because the Services and these Terms concern interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all disputes. However, the arbitrator will apply applicable substantive law consistent with the FAA and the applicable statute of limitations or condition precedent to suit.

Arbitration Award – The arbitrator may award on an individual basis any relief that would be available pursuant to applicable law, and will not have the power to award relief to, against or for the benefit of any person who is not a party to the proceeding. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party. Such award will be final and binding on the parties, except for any right of appeal provided by the FAA, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.

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Location of Arbitration – You or We may initiate arbitration in either Cleveland, OH or the federal judicial district that includes your billing address. In the event that you select the latter, We may transfer the arbitration to Cleveland, OH so long as We agree to pay any additional fees or costs

which the arbitrator determines you incur as a result of the transfer.

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Payment of Arbitration Fees and Costs – So long as you place a request in writing prior to commencement of the arbitration, We will pay all arbitration fees and associated costs and expenses. But, you will still be responsible for all additional fees and costs that you incur in the arbitration which include but are not limited to attorneys’ fees or expert witnesses. In addition to any fees and costs recoverable under applicable law, if you provide notice and negotiate in

good faith with Us as provided in the section above titled “Pre-Arbitration Claim Resolution” and the arbitrator concludes that you are the prevailing party in the arbitration, you will be entitled to recover reasonable attorney’s fees and costs as determined by the arbitrator.

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Class Action Waiver

Except as otherwise provided in this Provision, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, consolidated action or private attorney general action) unless both you and We specifically agree to do so following initiation of the arbitration. If you choose to pursue your dispute in court by opting out of the Arbitration Provision, as

specified above, this Class Action Waiver will not apply to you. Neither you, nor any other user of the services can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding without having complied with the opt-out

requirements above.

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Jury Waiver

You understand and agree that by accepting this Provision in these Terms, you and We are each waiving the right to a jury trial or a trial before a judge in a public court. In the absence of this Provision, you and We might otherwise have had a right or opportunity to bring disputes in a court, before a judge or jury, and/or to participate or be represented in a case filed in court by others (including class actions). Except as otherwise provided below, those rights are waived. Other rights that you would have if you went to court (e.g., the rights to both appeal and certain types of discovery) may be more limited or may also be waived.

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Severability

If any clause within this Provision (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Provision whose remainder will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, this entire Provision will be unenforceable and the dispute will be decided by a court.

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Continuation

This Provision shall survive the termination of your account with Us or Our affiliates or licensees and your discontinued use of the service. Notwithstanding any provision in this Agreement to the contrary, We agree that if We make any change to this Provision (other than a change to the Notice Address), you may reject any such change and require Us to adhere to the language in this provision if a dispute between Us arises.

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9.0 General

Certain violations of these Terms, as determined solely by Us, may require immediate termination of your access to the service without prior notice to You. The Federal Arbitration Act, California state law and applicable U.S. federal law, without regard to the choice or conflicts of law provisions, will govern these Terms. Foreign laws do not apply. Except for disputes subject to arbitration as described above, any disputes relating to these Terms or the service will be heard in the courts located in Cleveland, OH. If any of these Terms are deemed inconsistent with applicable law, then such term(s) shall be interpreted to reflect the intentions of the parties, and no other terms will be modified. By choosing not to enforce any of these Terms, We are not waiving Our rights. These Terms are the entire agreement between you and Us and, therefore, supersede all prior or contemporaneous negotiations, discussions or agreements between Everyone about the Services. The proprietary rights, disclaimer of warranties, representations made by you, indemnities, limitations of liability and general provisions shall survive any termination of these Terms.

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CALIFORNIA CONSUMER NOTICE Under California Civil Code Section 1789.3, California users are entitled to the following consumer rights notice: The service are provided by Sway Mobility Inc. If you have a question or complaint regarding the Website or Services, please contact Customer Service by emailing support@swaymobility.com. You may also contact Us by writing Sway Mobility Inc., 3558 Lee Road, Shaker Heights, OH 44120. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by post at 1625 North Market Blvd., Sacramento, CA 95834 or by telephone at (916) 445-1254 or (800) 952-5210 or Hearing Impaired at TDD (800) 326-2297 or TDD (916) 322-1700.

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10.0 Contact Us

If You have any questions about these Terms or otherwise need to contact Us for any reason, You can reach Us by emailing support@swaymobility.com or by mail at 3558 Lee Road, Shaker Heights, OH 44120.

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