3. Use of the App. You agree that you will access the app from your personal phone or a device designated by Us. You also agree to notify us as soon as possible if your phone has been stolen or compromised. We may contact you at any time by phone, text, or email. You must complete any additional requirements specific to the program for which you are applying (as and if applicable), such as safe driving courses, prior to your first booking even if you have been validated as a Member.

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a. Fees and Cancellation. You can cancel your Membership at any time without cost but you are responsible for any outstanding charges, fees, or damages on your account. We may retain your information to comply with rules, laws, and regulations for up to 7 years after you cancel. You can delete your account from the App 90 days after your last transaction. Our data retention policy requires this timeframe.

 

b. Communication Rights. Any communications by you to Us (such as comments, questions, suggestions, materials) through any format whatsoever (e.g., call, fax, email) will be treated as both non-confidential and non-proprietary. You hereby assign all right, title, and interest in, and We are free to use, without any attribution or compensation to You, any ideas, know-how, concepts, techniques, or other intellectual property and proprietary rights contained in the communication, whether or not patentable, for any purpose whatsoever, including but not limited to, developing, manufacturing, having manufactured, licensing, marketing, and selling, directly or indirectly, products and services using such communication. You understand and agree that We are not obligated to use, display, reproduce, or distribute any such ideas, know-how, concepts, or techniques contained in the communication, and you have no right to compel such use, display, reproduction, or distribution.

 

c. Prohibited Uses. You must not share your login or password to the App. If you suspect anyone else is using your Membership account, or if your phone is lost or stolen, you must contact Us immediately to suspend your account. You remain liable for any actions or damages resulting from unauthorized access. Do not use our App, or any app including texting, while driving.

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4. Use of the Vehicles. In order to use or operate a Vehicle, for a period of time (each a “Drive”), you will first locate an available Vehicle by using the App, by finding an available Vehicle in a pickup location indicated in the App, or by other means made available by Sway. For the avoidance of doubt, if you have not been approved by Sway to use the Services, then you have no right to use, rent, or operate any Vehicle.

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a. Reservation Process. You will make a reservation for a Drive through the App. Sway does not guarantee that a Vehicle will be available for a Drive at any particular time. Once a reservation for a Drive is complete, you can pick up the Vehicle at the pick-up location designated in the App; provided that, Sway may change such location at any time prior to your Drive. Your Drive will begin when you check in for the Drive on the App, and when the App subsequently unlocks the Vehicle, and authorizes the Vehicle to start. You may access the Vehicle no more than 15 minutes prior to your Drive, if the Vehicle is in the pick-up location and available, without any charge. Notwithstanding anything to the contrary herein, Sway may cancel your reservation for a Drive at any time, in the event the Vehicle is unavailable for pick-up.

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b. Persons Permitted to Operate a Vehicle. To the extent permitted by applicable law, only you, the Member whose name is on the reservation for a Drive, may operate the Vehicle during a Drive.

 

c. Vehicle Inspection Prior to a Drive. Before accessing a Vehicle, you will conduct a visual inspection “walk around check” of the Vehicle exterior to check for damage and will report any damage to Sway by indicating any such damage in the App. If you are unable to report damage through the App for any reason, you must report damage to Sway by calling Member Support. Member Support may approve or deny the start of a Drive based on its assessment of the damage. If you fail to report any damage or indicate in the App that no damage was found at the time you began a Drive, Sway may charge you for all costs related to the repair of the Vehicle for damage found after your use of the Vehicle.

 

d. Drive Length and Radius. The duration of a Drive will be for the amount of time reserved with a minimum of one hour. If you retain the Vehicle for longer than the amount of time reserved for a given Drive, you will be charged a Late Return Fee in accordance with the Fee Schedule, which will be calculated in 15-minute increments. To avoid this Late Return Fee, you can seek to extend the reservation period for your Drive. Such extension is only available if there is not another booking within 30 minutes after your originally-scheduled reservation. Sway does not guarantee the availability of an extension for any Drive or reservation. If you retain the Vehicle for longer than the amount of time reserved for a given Drive, you may also be charged an Inconvenience Fee in accordance with the Fee Schedule, if the late return of the Vehicle impacts a subsequent booking in any way, in Sway’s sole opinion. In addition, Sway allows a Vehicle to be driven no more than 25 miles per each hour reserved for a Drive. For purposes of an example, this means that a Vehicle reserved for an hour-long Drive can be driven up to 25 miles during the Drive; a Vehicle reserved for four hours will have 100 miles of driving that can occur any time during that four hour Drive period. If a Vehicle is driven more than the allotted mileage during the Drive, you will be charged for each mile driven during a Drive over the 25 mile limit in accordance with the Fee Schedule. Distance is calculated in kilometers in our systems and converted to miles and you agree to accept the conversions in our systems for purposes of billing. It is your responsibility to ensure that the Vehicle has enough range for your trip. Without limiting the language provided in Section 7 below, Sway makes no representations or warranties that the Vehicle will have sufficient charge to operate during the entirety of the time booked for the Drive. Any charge estimates provided by Sway, or otherwise provided in the Vehicle, are estimates only. In no event will Sway be liable for a Vehicle’s failure to operate during the entirety of the time booked for a Drive, due to a deficient charge or otherwise. You may connect the Vehicle to properly installed, UL-certified electric vehicle (“EV”) chargers to increase the range. If the Vehicle is inoperable due to depleted batteries, you are responsible for the costs to return the Vehicle to an EV Charger and any damages that result.

 

e. Parking. You must always park the Vehicle in a legal parking space, and you must comply at all times with all applicable state, federal, county, municipal, private, and all other parking rules in the area in which a Vehicle is parked. You can park a Vehicle during a Drive without ending a Drive by utilizing the applicable options in the App. However, you will continue to incur costs and charges for the applicable Drive as described herein while a Vehicle is parked, unless the Drive has been ended. If you have parked the Vehicle in a space that is not where you picked up the Vehicle at the commencement of the Drive, you are responsible for any parking charges, tickets, or other fees, which you will not challenge. You will also pay any tolls or use fees as a result of your chosen route. We will charge you a fee for the same (please see the Fee Schedule) in addition to the cost of any charges that are unpaid by you.

 

f. Damage to a Vehicle During a Drive. If the Vehicle is damaged during your Drive, you must inform Us as soon as it is safe to do so. You must report any accident in which you and the Vehicle are involved during a Drive, and you must request and provide Sway with a police report related to the same. You also agree to cooperate with Us and our insurance provider, including requesting and providing any requested documentation. You agree to pay any violation fee or ticket as a result of your use of the Vehicle and will not challenge any violation or ticket.

 

g. Return of a Vehicle. Your Drive will end when you confirm completion of the Drive on the App, and when you have met the other necessary return requirements. In particular, the Vehicle must be returned to the space where you picked it up (or to another space that is designated as a Sway space if directed by Us). The App uses geofencing technologies and will not allow you to drop off the Vehicle in another location, barring few specific circumstances. In addition, you are required to (i) connect the Vehicle to an EV charger at the end of the Drive, and (ii) ensure the Vehicle is actively charging. We’ll remind you of this in the App, but it is your responsibility to connect, or plug in, the Vehicle, and to further confirm that the Vehicle is charging prior to your leaving the Vehicle at the return location. If there are any issues with your ability to initiate the charging of the Vehicle upon your return of the Vehicle, it is your responsibility to note the same in the App. Note that We may end your rental period remotely if we attempt to contact you and you are unresponsive. Any damage the Vehicle incurs during your Drive must be noted in the App by you at the conclusion of the Drive, when the Vehicle is dropped off.

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h. Fees, Charges, and Costs. In addition to the provisions set forth below, a list of additional charges and fees can be found on Sway’s Fee Schedule.

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i. Generally. The estimated fee for any Drive is displayed on the reservation page in the App. There are both time-based and mileage-based fees, so if you exceed the miles included with the time period you reserved there may be additional costs. You agree to pay this fee (plus any applicable sales or use or other taxes) for each Drive until you end the Drive. You will receive a summary of the total charges for your rental through the app. You may request clarification or dispute a charge for up to 14 days from the end of the applicable Drive. If you request a refund and We agree to issue the refund, we may deduct a fee from the refund for administrative and merchant servicing fee costs. No refunds are guaranteed.

 

ii. Payment Processing Fees. Our payment processor will pre-authorize the estimated amount of any applicable Drive, plus those certain amounts for potential incidentals as are set forth on Sway’s Fee Schedule, prior to the scheduled start of your Drive. If this pre-authorization fails, your reservation for the applicable Drive will automatically be cancelled. Only the actual amount of the Drive will be processed for payment, but the pre-authorization may take time to be removed from your payment account as your bank or credit card company determines the process for removing a pre-authorization. Please check with your bank or credit card company for their policies. We will not reimburse you for any expenses incurred as a result of your reservation for a Drive being cancelled due to a pre-authorization issue.

 

iii. Reservation Cost. You may be charged for the amount of time you reserve for a Drive, if the amount of time reserved for a Drive is less than what is actually used for a Drive.  This policy is to dissuade drivers from making long bookings they do not intend to keep as this prevents the availability of the Vehicles for other drivers and conflicts with fair use.

 

iv. Cancellation and No-Show Fees. You can cancel a reservation for a Drive up to an hour prior to the reserved Drive start time. Otherwise, you will be charged the full amount of the Drive. If you reserve the Vehicle for a Drive, and you do not cancel your reservation, and you ultimately do not use the Vehicle for the reserved time, you will still be charged the full amount of the Drive.

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i. Use of Vehicle.

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i. You must always use and operate the Vehicle in a lawful manner and obey all posted signs.

 

ii. Subject only to applicable law, you may not let anyone else drive the Vehicle.

 

iii. We may suspend or cancel your Membership if you are subject to a moving violation while using a Vehicle.

 

iv. You are obligated to report any negative occurrences that affect your ability to drive, your driver’s license, or your driving record based on any driving.

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v. You must close all windows and doors when ending any Drive or parking the Vehicle or if it is raining, snowing, or if leaving the windows or doors open would damage the Vehicle in any way.

 

vi. You may not alter or repair anything in or on the Vehicle, you may not remove or add anything to the Vehicle, and you may not change or adjust any settings in the Vehicle except the radio station or temperature. Settings set to Auto, such as headlights and climate control, should be returned to Auto at the end of each Drive.

 

vii. No towing with the Vehicle or using the Vehicle to push another Vehicle or object. If the Vehicle is towed or impounded, you must notify Us immediately. Do not attempt to tow a Vehicle if it isn’t working. Please contact Us immediately.

 

viii. No Vehicle will be used (by you or by anyone else through an act or omission of you) as follows:

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1. to commit any crime, illegal activity, or be party to any crime or illegal activity;

 

2. without ensuring compliance with all applicable seatbelt laws and child safety seat laws. Specifically, you and all passengers must wear seatbelts. You may only carry as many occupants as there are factory-installed seatbelts in the Vehicle. Any children must be properly restrained in an approved child safety seat that you are responsible for installing properly. We do not provide any child seats;

 

3. under the influence of alcohol or controlled substance (this is a zero-tolerance policy);

 

4. on unpaved roads or off-roads;

 

5. in any manner other than the intended use for such Vehicle;

 

6. to consume or transport drugs, alcohol, illegal or contraband substances or property deemed hazardous by reason of being flammable, explosive, fissionable or corrosive;

 

7. loaded beyond the manufacturer’s stated passenger capacity for carrying passengers, for carrying passengers other than in the interior of the Vehicle, or for carrying more passengers than there are seatbelts in the Vehicle;

 

8. to haul or move anything on the roof of the Vehicle, including but not limited to roof racks, bicycle racks and roof boxes, unless such equipment was installed by Sway;

 

9. to haul or carry anything other than passengers and light goods (no heavy or bulky objects, flammable or dangerous materials, or objects that extend beyond the Vehicle (like out of a window). The rear hatch, if the Vehicle has one, must be closed while driving);

10. to engage in any activity that could properly be charged as a felony;

 

11. to smoke or vape any substance in (note that you will receive a fine, which we will automatically charge to your payment method, if smoking or vaping is detected in the Vehicle);

 

12. to transport any animals except for any service animal;

 

13. to eat or drink in, if such food or beverage is likely to spill in the Vehicle;

 

14. for any commercial purposes (including, but not limited to, use of the Vehicle for participation in a ride sharing service, as a livery vehicle, or for on-demand delivery) or to carry persons or property for hire (This includes all services such as ridehailing (e.g., Uber, Lyft) or delivery (e.g., UberEats, Amazon, GrubHub, etc.)); or

 

15. in any manner, or for any use, by which the Vehicle may become excessively soiled or by which trash will be left in the Vehicle.

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ix. Our Vehicles contain or may contain hardware devices including control units, communication units, sensors, cameras, and other devices. You agree not to photograph, record, tamper with, or document any equipment, sensors, cameras, or technology installed in any part of the Vehicle, including but not limited to the trunk compartment, spare tire area, driver footwell, and external Vehicle surfaces. Certain of this equipment is or may be proprietary technology being tested as part of our tele-operated carshare program. Attempts to document, tamper with, or interfere with this equipment, including taking photographs or making recordings of any installed components, constitutes a violation of these Terms of Service and may result in immediate termination of Membership and potential liability for damages.

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j. Electronic Surveillance. The Vehicles are equipped with electronic surveillance and telematics technologies, including but not limited to a global positioning satellite (“GPS”), satellite navigation system, sensing and diagnostic modules (“SDM”), data communication modules (“DCM”), and video and event data recorders (together, “EDR”) and/or other technologies that can collect and transmit data (such as location data) about the Vehicles (collectively, the “Telematics Systems”), which Telematics Systems are used for the purposes of (i) recording the Vehicle’s location upon certain situations in Sway’s sole discretion; (ii) transmitting information concerning a crash in which the Vehicle has been involved when a crash occurs, as well as providing other collision detections and notifications; (iii) providing service warnings; (iv) tracking air bag deployment and other incident data; (v) providing diagnostic data such as charge levels; (vi) providing navigational services; (vii) enforcing these Terms; and (viiI) tracking stolen or unreturned Vehicles. If the Vehicle is not returned at the specified date and time, Sway may notify you of Sway’s intent to use electronic means to retrieve the Vehicle, and you agree that such electronic means may be employed by Sway as described in this section. Sway reserves the right to resort to electronic self-help or other means on or after the Vehicle return date, in Sway’s sole discretion. You may contact Sway at the number listed on the App with any concerns you may have regarding these Terms. The Telematics System may (in whole or in part) have been installed or affixed after the Vehicle’s manufacture. The Telematics System utilizes wireless technology to transmit data and, therefore, privacy cannot be guaranteed and is specifically disclaimed by you. You expressly consent to the installation of the Telematics System in the Vehicles and you acknowledge and agree that: (a) you have no expectation of privacy related to your use of the Vehicle; (b) Sway is not responsible for the operability of the Telematics System; and (c) to the extent permissible by law, Sway, and any affiliates, and third parties acting on Sway’s behalf: (i) may have access to the information supplied by the Telematics System, including, but not limited to: location, automatic crash notification, operational, mileage, diagnostic vehicle health data, tolling (if permitted by law), performance, and driver behavior (collectively, the “Telematics Data”); and (ii) may monitor the Vehicle or disclose such information to the extent permitted by law. Use of the Telematics System (which may occur automatically by using the Vehicle) is subject to our Privacy Policy. By entering into these Terms, you consent to the collection, use, monitoring and disclosure of the Telematics Data (including, but not limited to the disclosure of aggregated data for marketing purposes) to the extent permitted by law. You acknowledge that disabling any of the Telematics Systems will result in a breach of these Terms and is cause for termination of your Membership and Sway’s retrieval of the Vehicle. In addition, you acknowledge that any maps, directions and location advice provided by the App or in-Vehicle navigation systems  or other Telematics 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 applicable navigation or Telematics Systems.

 

i. DISCLAIMER: In addition to the above, Sway expressly discloses that the Vehicles may be equipped with cameras and dashcams that record data from the Vehicle and its operation. Any information obtained by this equipment or the Telematics Systems generally may be processed through artificial intelligence or other services either onboard or remotely. In addition there may be third party operators of the 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 Telematics Systems in each Vehicle. Further, data from your phone or computer may be collected through Our App or website. In all instances, 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. Further, we retain the right to any and all data generated by the Vehicle and App. 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.

 

k. Driver Behavior. All general behavior requirements and prohibited uses described in Section 4(i) above apply in all circumstances. In addition, you agree to: (i) not exceed the speed limit; and (ii) avoid hard accelerations, hard breaking, and other behavior that accelerates the wear and tear of the Vehicle or discharges the battery faster than it would under normal driving behavior. If you engage in any of these activities, or in any other reckless, dangerous, harmful, or otherwise prohibited driving behavior (in Sway’s sole discretion), Sway may assess fines for the same or may suspend or revoke your Membership. For the avoidance of doubt, the assessment of fines or other penalties for driving behavior that Sway deems unacceptable, in Sway’s sole opinion, may be assessed by Sway at any time and in any form, in Sway’s sole discretion. Sway may choose, in its sole discretion, to provide you with any information that impacted or factored into Sway’s decision related to the same.

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5. Insurance.

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a. Generally. We provide insurance for the Vehicle but you qualify for coverage only if the following requirements are met:

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i. You are in full compliance with these Terms (and were in full compliance at the time of an accident);

 

ii. You are at least 18 years old (university-affiliated Members may be accepted at 18 but typically you must be 21 to be a Member);

 

iii. You have a valid driver’s license;

 

iv. You reported any changes to the validity of your license or driving infractions that occurred after being accepted as a Member;

 

v. You have not let anyone else operate the Vehicle;

 

vi. You agree to cooperate with Us and Our agents.

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b. We provide automobile liability coverage for third-party bodily injury and property damage in the state in which you began your Drive. Coverage amounts and limits vary by state and no-fault benefits are included in states that require it. Please see swaymobility.com/insurance for coverage limits by state.

 

c. To the extent permitted by applicable law, We reserve the right to hold you fully responsible for all damage, loss, claims and liability arising from your use or possession of a Vehicle, including, but not limited to: (a) physical or mechanical damage to the Vehicles whether or not you are at fault, (b) loss due to theft, (c) physical damage resulting from vandalism, (d) bodily injury of you, your passenger or a third party, (e) third party claims, (f) actual charges for towing, storage and impound fees paid by Us, (g) administrative charges including the cost of appraisal and other costs and expenses incident to the damage or loss, (h) if applicable, any diminished value to the Vehicle; and (i) all mechanical damage to the Vehicle related to an accident or your abuse or neglect of the Vehicle. Your responsibility for such damage or loss will include: (a) the lesser of: (i) the actual and reasonable costs that we incur to repair the Vehicle or that We would incur if We chose to repair the Vehicle, or (ii) the fair market value of the Vehicle immediately before the damage occurred less any net disposal proceeds; and (b) Our actual charges for towing, storage, and impound.

 

d. You are responsible for a deductible prior to any insurance coverage if: (a) any incident, collision, or accident occurs, or damage is sustained that is your fault; (b) if fault for any incident, collision, accident, or damage cannot be determined; or (c) if damages for any incident, collision, accident, or loss resulting from your use of a Vehicle cannot be recovered from a third party. Deductible amounts can be found at swaymobility.com/insurance. Your personal automobile policy and/or credit card may cover some or all of this amount; please check with your insurance agent or credit card issuer before using the Services. You are encouraged to obtain personal insurance coverage that covers your liabilities before using a Vehicle.

 

e. If losses exceed the insurance coverage, you authorize Us to work with your personal insurance provider, if you have one, to recover amounts above Our coverage. You are responsible for any amounts above Our coverage limits that are not met by your insurance.

 

f. You agree to notify us immediately of any incident, cooperate fully with Us and Our insurance carrier or its agents, avoid doing anything that prejudices Our position, pay any deductible or other amounts owed, attend trials, dispositions, or other requested events, provide and secure evidence, and, take no action to interfere with Our subrogation rights or those of Our insurer.

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6. Changes to These Terms. We may change the Terms at any time by providing you notice through the App and/or Our 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 and Membership will be terminated and you must stop using the Services.

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7. Disclaimers and Limits of Liability.

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a. Disclaimer of Warranties. YOU ACCESS, USE, OPERATE AND TAKE POSSESSION OF THE VEHICLE AND ANY OPTIONAL ACCESSORIES “AS IS”, AND SWAY HEREBY EXCLUDES ANY AND ALL WARRANTIES, BOTH EXPRESS AND IMPLIED, WITH RESPECT TO THE VEHICLE, THE SERVICES (INCLUDING THE OPERATION, PERFORMANCE AND RESULTS THEREOF), THE APP, THE WEBSITE, AND ANY OPTIONAL ACCESSORIES, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

 

b. Disclaimer of Liability. UNDER NO CIRCUMSTANCES SHALL SWAY BE LIABLE FOR ANY AND ALL CLAIMS, ACTIONS, LOSSES, LIABILITIES, DAMAGES, FEES, FINES, EXPENSES, COSTS AND PENALTIES (COLLECTIVELY, “LOSSES”) INCURRED OR SUSTAINED BY, OR IMPOSED UPON, ANY OF SWAY, YOU, OR ANYONE ELSE BASED UPON, ARISING OUT OF, WITH RESPECT TO, OR BY REASON OF YOUR CRIMINAL, WILLFUL, OR NEGLIGENT ACTION OR OMISSION IN CONNECTION WITH THESE TERMS, THE ACCESS, USE OR OPERATION OF THE VEHICLE, THE APP OR THE SERVICES.

 

c. Disclaimer of Responsibility for Personal Property. SWAY IS NOT LIABLE FOR ANY PERSON’S LOST, STOLEN, OR DAMAGED PROPERTY IN AND FROM THE VEHICLE INCLUDING, BUT NOT LIMITED TO, DAMAGE OR LOSS IN CONNECTION WITH THESE TERMS.

 

d. Disclaimer of Special, Consequential and Other Damages. SWAY IS NOT LIABLE FOR ANY AND ALL INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, ECONOMIC, INCIDENTAL, LOSS OF INCOME, LOSS OF PROFITS, LOSS OF USE, LOSS OF EARNINGS, INCONVENIENCE, CONSEQUENTIAL OR OTHER DAMAGES SUSTAINED IN CONNECTION WITH THIS AGREEMENT, THE SERVICES, THE APP, OR THE VEHICLE. WITHOUT LIMITING THE FOREGOING, SWAY WILL HAVE NO LIABILITY FOR (A) ANY LOSS OF, OR DAMAGE TO, ANY GOODS OR OTHER PERSONAL PROPERTY IN OR ON VEHICLES OR IN OR ON ANY THIRD PARTY VEHICLE, (B) ANY LOSSES (INCLUDING WITH RESPECT TO PERSONAL INJURY, DEATH OR PROPERTY DAMAGE) IN RELATION TO YOU, OR ANY THIRD PARTY, (C) ANY LOSSES INCURRED BY YOU AS A RESULT OF ANY CLAIMS MADE BY A THIRD PARTY, OR (D) ANY LOSSES INCURRED BY YOU IN CONNECTION TO EITHER (I) THE NON-AVAILABILITY, SUPPLY, OPERATION OR USE OF THE VEHICLE, OR (II) ANY ACCESSORIES IN OR TO THE VEHICLE, WHETHER SUPPLIED BY SWAY OR BY YOU.

 

e. No Disclaimer or Limitation in Contravention with Law. Nothing in this Section 7 disclaims any warranty that cannot be disclaimed pursuant to applicable law. Nothing in this Section 7 limits or disclaims any liability that cannot be limited or disclaimed pursuant to applicable law.

 

f. Limitation of Liability. WE SHALL NOT BE LIABLE TO YOU FOR ANY DAMAGES RESULTING FROM YOUR USE OF THE SERVICES, THE APP 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. 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 OF THIS AGREEMENT.

 

g. 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.

 

h. Indemnification. To the extent permitted by applicable law, you will defend, indemnify, hold harmless and reimburse Sway and its directors, officers, shareholders, employees and agents from and for all damages, losses, costs or expenses, including attorneys’ fees, arising from your use of the Vehicle, the App, or the Services.

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8. Dispute Resolution.

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a. Binding Mutual Arbitration. Any dispute, claim or controversy in connection with, arising out of or relating to these Terms, the Services, your Membership, or the use of a Vehicle or the App, or the breach, termination, enforcement, interpretation or validity of these Terms, including, but not limited to, the determination of the scope or applicability of this agreement to arbitrate (a “Dispute”), will be determined by arbitration in the State of Ohio, before a single arbitrator. The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with AAA Consumer Arbitration Rules. Judgment on the award may be entered in any court having jurisdiction. This provision will not preclude the parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. 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.

 

b. 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, then you may pursue your dispute in arbitration.

 

c. Conduct of Arbitration. The arbitration will be commenced by the claimant party filing a demand for arbitration with the administrator of AAA and serving the demand on the opposing party. Within 30 calendar days of the date the demand for arbitration is filed, the parties will select an arbitrator by following the AAA Consumer Arbitration Rules’ appointment procedures. Except as may be required by law, neither party nor the arbitrator may disclose the existence, content or results of any arbitration under these Terms without the prior written consent of both parties. The arbitrator’s award will be in writing accompanied by a reasoned opinion and a written statement of the essential findings and conclusions on which the award is based. 

 

d. Costs. The arbitrator will determine how the costs and expenses of the arbitration will be allocated between the parties and may award attorneys’ fees (in any case, subject to the attorneys’ fees provisions hereunder, as applicable).

 

e. Remedies. The arbitrator will have the power to award any party any remedies that would be available to that party in his or her individual capacity under these Terms or otherwise in a court of law for the Dispute presented to and decided by the arbitrator.

 

f. Arbitration is on an Individual Basis Only; Class Action Waiver. THE PARTIES AGREE TO ARBITRATE SOLELY ON AN INDIVIDUAL BASIS, AND THAT THIS AGREEMENT DOES NOT PERMIT CLASS ARBITRATION OR ANY CLAIMS BROUGHT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ARBITRATION PROCEEDING. THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING. NOTWITHSTANDING THE ARBITRATOR’S POWER TO RULE ON HIS OR HER OWN JURISDICTION AND THE VALIDITY OR ENFORCEABILITY OF THE AGREEMENT TO ARBITRATE, THE ARBITRATOR HAS NO POWER TO RULE ON THE VALIDITY OR ENFORCEABILITY OF THE AGREEMENT AND MUST ARBITRATE SOLELY ON AN INDIVIDUAL BASIS. IN THE EVENT THE PROHIBITION ON CLASS ARBITRATION IS DEEMED INVALID OR UNENFORCEABLE, THE REMAINING PORTIONS OF THIS SECTION WILL REMAIN IN FORCE.

 

g. Applicable Law. These Terms and the rights of the parties hereunder will be governed by and construed in accordance with the Laws of the State of Ohio, exclusive of conflict or choice of law rules. The parties acknowledge that these Terms evidence a transaction involving interstate commerce. Notwithstanding the provision in the preceding sentence with respect to applicable substantive law, any arbitration conducted pursuant to these Terms will be governed by the Federal Arbitration Act (9 U.S.C., Secs. 1-16). 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.

 

h. Jury Waiver. You understand and agree that by accepting this Section 8(h) 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 Section 8(h), 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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9. Miscellaneous Provisions.

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a. Entire Agreement; Survival; Conflict with Law. These Terms and any amendments or attachments thereto, along with any terms, policies or other requirements set forth on the App or the Sway website, each as amended, modified or supplemented from time to time, are incorporated by reference into these Terms. To the extent there is a direct conflict between a provision of these Terms and a law applicable to these Terms or a rental of a Vehicle, the applicable law will govern. These Terms may be executed in two or more counterparts, and it is not necessary that the signatures of all the parties hereto appear on the same counterpart, but such counterparts together will constitute a single effective agreement. Further, counterparts to these Terms may be executed by hand or by any electronic signature or consent, and executed counterparts may be delivered via facsimile, electronic mail or other similar transmission method, and any executed counterpart so delivered shall be valid and effective for all purposes. Any edits made to these Terms so as to include Vehicle identification information or specifics may be made by Sway in their sole discretion and will be incorporated herein, without further approval or execution.

 

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

 

c. Continuation. These Terms shall survive the termination of your account and/or Membership with Us or Our affiliates or licensees and your discontinued use of the Services.

 

d. Assignment. Your rights and obligations under these Terms are not assignable or transferable, in whole or in part. Any attempt by you to assign or transfer these Terms (or your Membership), in whole or in part, will be void and of no force and effect. Sway may make any assignment at any time without notice to you or your consent.

 

e. No Agency.  You are in no way the agent of Sway in possessing, using or operating a Vehicle or using the Services.  Nothing in these Terms will be construed to create a partnership, joint venture, agency or employment relationship between Sway and you. You will have no authority to enter into agreements of any kind on behalf of Sway or otherwise bind or obligate Sway in any manner to any third party, by virtue of the relationships contemplated by these Terms.

 

f. Notices. Any notices or communications required or permitted to be given to you shall be in writing and shall be sufficiently given if emailed to you or if posted on the App or the website. Any notices or communications required or permitted to be given to Sway shall be by email to support@swaymobility.com or by mail at 3558 Lee Road, Shaker Heights, OH 44120.

 

g. State Specific Disclosures:

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NEW YORK STATE LAW REQUIRES ALL CHILDREN UNDER THE AGE OF EIGHT TO BE RESTRAINED IN A FEDERALLY APPROVED CHILD RESTRAINT SYSTEM.

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NOTICE: New York State Law prohibits the following practices by rental vehicle companies based upon race, color, ethnic origin, religion, disability, sex, marital status, or age: (1) refusal to rent; (2) the imposition of any additional charge (except in certain instances where the renter is under the age of 25). In addition, it is unlawful for any rental vehicle company to refuse to rent a vehicle to any person solely on the requirement of ownership of a credit card.