THESE TERMS OF USE ("AGREEMENT") SET FORTH THE LEGALLY BINDING TERMS FOR YOUR USE OF THE APPLICATION, WEBSITES, CONTENT, PRODUCTS, AND SERVICES (“SERVICES”). BY ACCESSING OR USING THE SERVICES, YOU ARE ACCEPTING THIS AGREEMENT (ON BEHALF OF YOURSELF OR THE ENTITY ON WHOSE BEHALF YOU ARE ACCESSING OR USING THE SITE OR SERVICES, AS APPLICABLE) AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THIS AGREEMENT. YOU MAY NOT ACCESS OR USE THE SERVICES OR ACCEPT THIS AGREEMENT IF (A) YOU ARE NOT AT LEAST 18 YEARS OLD, (B) IF ACCESSING OR USING THE SITE OR SERVICES ON BEHALF OF AN ENTITY, YOU DO NOT HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF SUCH ENTITY, AND (C) YOU DO NOT AGREE WITH ALL OF THE PROVISIONS OF THIS AGREEMENT.
PLEASE READ THESE TERMS CAREFULLY, AS THEY CONSTITUTE A LEGAL AGREEMENT. IN THESE TERMS, THE WORDS "INCLUDING" AND "INCLUDE" MEAN "INCLUDING, BUT NOT LIMITED TO."
Certain features of the Services or Site, including certain programs and products provided through the Site, may be subject to additional guidelines, terms, or rules, which will be posted on the Services or Site in connection with such features, Services, programs, and products. All such additional terms, guidelines, and rules are hereby incorporated by reference into this Agreement.
Supplemental terms may apply to certain Services, such as policies for a particular event, program, activity or promotion, and such supplemental terms will be disclosed to you in separate disclosures. Supplemental terms are in addition to, and shall be deemed a part of, the Terms for the purposes of the applicable Service(s). Supplemental terms shall prevail over these Terms in the event of a conflict with respect to the applicable Services.
TRY WHIP, LLC may amend the Terms from time to time. Amendments will be effective upon TRY WHIP, LLC's posting of such updated Terms at this location or in the amended policies or supplemental terms on the applicable Service(s). Your continued access or use of the Services after such posting confirms your consent to be bound by the Terms, as amended. If TRY WHIP, LLC changes these Terms after the date you first agreed to the Terms (or to any subsequent changes to these Terms), you may reject any such change by providing TRY WHIP, LLC written notice of such rejection within 30 days of the date such change became effective, as indicated in the "Effective" date above. This written notice must be provided either (a) by mail or hand delivery to our registered agent for service of process or (b) by email from the email address associated with your Account. In order to be effective, the notice must include your full name and clearly indicate your intent to reject changes to these Terms. By rejecting changes, you are agreeing that you will continue to be bound by the provisions of these Terms as of the date you first agreed to the Terms (or to any subsequent changes to these Terms).
This Agreement shall be governed by the laws of the New Jersey, United States of America, without giving effect to any conflict of laws principles that may require the application of the law of another jurisdiction. Any action or proceeding relating to a claim or controversy at law or equity that arises out of or relates to this and falls outside of the below stated Arbitration Terms must be brought in a federal or state court located in Clark County and each party irrevocably submits to the exclusive jurisdiction and venue of any such court in any such action or proceeding, unless such Claim is submitted to arbitration as set forth in Section 11.2(c).
If a dispute arises between you and TRY WHIP, LLC, our goal is to learn about and address your concerns. You agree that, before instituting any arbitration, you will notify us about any dispute you have with TRY WHIP, LLC regarding our Services by contacting TRY WHIP, LLC. If you and TRY WHIP, LLC are unable to resolve any such dispute within a reasonable time (not to exceed thirty (30) days), then either party may submit such controversy or dispute to binding arbitration.
By agreeing to the Terms, you agree that you are required to resolve any claim that you may have against TRY WHIP, LLC on an individual basis in arbitration, as set forth in this Arbitration Agreement. This will preclude you from bringing any class, collective, or representative action against TRY WHIP, LLC, and also preclude you from participating in or recovering relief under any current or future class, collective, consolidated, or representative action brought against TRY WHIP, LLC by someone else.
You and TRY WHIP, LLC agree that any dispute, claim or controversy arising out of or relating to (a) these Terms or the existence, breach, termination, enforcement, interpretation or validity thereof, or (b) your access to or use of the Services at any time, whether before or after the date you agreed to the Terms, will be settled by binding arbitration between you and TRY WHIP, LLC, and not in a court of law.
You acknowledge and agree that you and TRY WHIP, LLC are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Unless both you and TRY WHIP, LLC otherwise agree in writing, any arbitration will be conducted only on an individual basis and not in a class, collective, consolidated, or representative proceeding. However, you and TRY WHIP, LLC each retain the right to bring an individual action in small claims court and 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.
The arbitration will be administered by the American Arbitration Association ("AAA") in accordance with the AAA’s Consumer Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the "AAA Rules") then in effect, except as modified by this Arbitration Agreement. The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.
The parties agree that the arbitrator (“Arbitrator”), and not any federal, state, or local court or agency, shall have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement, including any claim that all or any part of this Arbitration Agreement is void or voidable. The Arbitrator shall also be responsible for determining all threshold arbitrability issues, including issues relating to whether the Terms are unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, or estoppel.
Notwithstanding any choice of law or other provision in the Terms, the parties agree and acknowledge that this Arbitration Agreement evidences a transaction involving interstate commerce and that the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“FAA”), will govern its interpretation and enforcement and proceedings pursuant thereto. It is the intent of the parties that the FAA and AAA Rules shall preempt all state laws to the fullest extent permitted by law. If the FAA and AAA Rules are found to not apply to any issue that arises under this Arbitration Agreement or the enforcement thereof, then that issue shall be resolved under the laws of the state of Nevada.
Unless you and TRY WHIP, LLC otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and TRY WHIP, LLC submit to the Arbitrator, unless you request a hearing or the Arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules.
Subject to the AAA Rules, the Arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed $2,500, TRY WHIP, LLC will pay all such fees, unless the Arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
This Agreement shall commence on the Effective Date and, unless earlier terminated as provided below, shall continue for a period of one (1) year from the Effective Date (“Initial Term”) and shall automatically renew for successive one (1) year periods. Either party may terminate this Agreement in the event of a material breach by the other party if the breach is not cured by the other party within five (5) days’ notice thereof by the non-breaching party. Either party may terminate this Agreement in its entirety at any time without cause by giving seven (7) days’ prior written notice of termination to the other party.
The Services comprise providing access to various driving services, taxi services, ride sharing services, and the like based on the user’s location, destination, rates, wait times, ride length through a web based site and mobile applications ("Application"), which enable users to be redirected to their desired service provider or directly request the service through the third party service provider.
TRY WHIP, LLC IS NOT RESPONSIBLE FOR ANY CHANGES IN PRICES DUE TO CHANGES IN THE THIRD PARTY RATES, SERVICE TIMELINESS, INJURIES THROUGH USING THE THIRD PARTY SERVICES, OR OTHER ISSUES IN WHICH THE THIRD PARTY IS LIABLE.
The Services may be made available or accessed in connection with Third Party Services and content (including advertising) that TRY WHIP, LLC does not control. You acknowledge that different terms of use and privacy policies may apply to your use of such Third Party Services and content. TRY WHIP, LLC does not endorse such Third Party Services and content and in no event shall TRY WHIP, LLC be responsible or liable for any products or services of such Third Party.
In order to use most aspects of the Services, you must register for and maintain an active personal user Services account ("Account"). You must be at least 18 years of age, or the age of legal majority in your jurisdiction (if different than 18), to obtain an Account, unless a specific Service permits otherwise. Account registration requires you to submit to TRY WHIP, LLC certain personal information, such as your name, address, mobile phone number and age, as well as at least one valid payment method supported by TRY WHIP, LLC. You agree to maintain accurate, complete, and up-to-date information in your Account. Your failure to maintain accurate, complete, and up-to-date Account information, including having an invalid or expired payment method on file, may result in your inability to access or use the Services. You are responsible for all activity that occurs under your Account, and you agree to maintain the security and secrecy of your Account username and password at all times. Unless otherwise permitted by TRY WHIP, LLC in writing, you may only possess one Account. You may not assign or otherwise transfer your Account to any other person or entity. You agree to comply with all applicable laws when accessing or using the Services, and you may only access or use the Services for lawful purposes (e.g., no transport of unlawful or hazardous materials). You may not in your access or use of the Services cause nuisance, annoyance, inconvenience, or property damage, whether to the Third-Party Provider or any other party. In certain instances, you may be asked to provide proof of identity or other method of identity verification to access or use the Services, and you agree that you may be denied access to or use of the Services if you refuse to provide proof of identity or other method of identity verification.
You agree that TRY WHIP, LLC may contact you by telephone or text messages (including by an automatic telephone dialing system) at any of the phone numbers provided by you or on your behalf in connection with a TRY WHIP, LLC account, including for marketing purposes.
TRY WHIP, LLC may, permit you from time to time to submit, upload, publish or otherwise make available to TRY WHIP, LLC textual, audio, and/or visual content and information, including commentary and feedback related to the services and TRY WHIP, LLC may use your company’s name, logo(s), textual, audio, and/or visual content and information in connection with your company in and/or with marketing and advertising campaigns ("Content"). Any Content provided by you remains your property. However, by agreeing to this agreement and/or providing Content to TRY WHIP, LLC you grant TRY WHIP, LLC a worldwide, perpetual, irrevocable, transferable, royalty-free license, with the right to sublicense, to use, copy, modify, create derivative works of, distribute, publicly display, publicly perform, and otherwise exploit in any manner such Content in all formats and distribution channels now known or hereafter devised (including in connection with the Services and TRY WHIP, LLC's business and on third-party sites and services), without further notice to or consent from you, and without the requirement of payment to you or any other person or entity
You agree to not provide Content that is defamatory, libelous, hateful, violent, obscene, pornographic, unlawful, or otherwise offensive, as determined by TRY WHIP, LLC in its sole discretion, whether or not such material may be protected by law. TRY WHIP, LLC may, but shall not be obligated to, review, monitor, or remove Content, at TRY WHIP, LLC's sole discretion and at any time and for any reason, without notice to you.
You are responsible for obtaining the data network access necessary to use the Services. Your mobile network's data and messaging rates and fees may apply if you access or use the Services from your device. You are responsible for acquiring and updating compatible hardware or devices necessary to access and use the Services and Applications and any updates thereto. TRY WHIP, LLC does not guarantee that the Services, or any portion thereof, will function on any particular hardware or devices. In addition, the Services may be subject to malfunctions and delays inherent in the use of the Internet and electronic communications.
You understand that use of the Services may result in charges to you for the Services rendered ("Charges"). TRY WHIP, LLC will place Charges on the use of the Services. Charges will be inclusive of applicable taxes where required by law. Charges may include other applicable fees, tolls, and/or surcharges including a booking fee, municipal tolls, airport surcharges or processing fees for split payments. TRY WHIP, LLC places a commission rate of 18% on all Services rendered. If TRY WHIP, LLC uses a Third Party Provider, TRY WHIP, LLC places a commission rate of 8% on the Services rendered through the Applications.
All Charges and payments will be enabled by TRY WHIP, LLC using the preferred payment method designated in your Account, after which you will receive a receipt by email. If your primary Account payment method is determined to be expired, invalid or otherwise not able to be charged, you agree that TRY WHIP, LLC may use a secondary payment method in your Account, if available. Charges paid by you are final and non-refundable, unless otherwise determined by TRY WHIP, LLC.
In certain cases, with respect to Third Party Provider, Charges you incur will be owed directly to Third Party Providers, and TRY WHIP, LLC will collect payment of those charges from you, on the Third Party Provider’s behalf as their limited payment collection agent, and payment of the Charges shall be considered the same as payment made directly by you to the Third Party Provider. In such cases, you retain the right to request lower Charges from a Third Party Provider for services or goods received by you from such Third Party Provider at the time you receive such services, and Charges you incur will be owed to the Third Party Provider. TRY WHIP, LLC will respond accordingly to any request from a Third Party Provider to modify the Charges for a particular service. This payment structure is intended to fully compensate a Third Party Provider, if applicable, for the services or goods obtained in connection with your use of the Services. In all other cases, Charges you incur will be owed and paid directly to TRY WHIP, LLC or its affiliates, where TRY WHIP, LLC is solely liable for any obligations to Third Party Provider.
You shall be responsible for the cost of repair for damage to, or necessary cleaning of, property resulting from use of the Services under your Account ("Repair or Cleaning"). In the event that a Repair or Cleaning request is verified by TRY WHIP, LLC in TRY WHIP, LLC's reasonable discretion, TRY WHIP, LLC reserves the right to facilitate payment for the reasonable cost of such Repair or Cleaning using your payment method designated in your Account. Such amounts, as well as those pertaining to lost and found goods, will be transferred by TRY WHIP, LLC to a Third Party Provider, if applicable, and are non-refundable.
THE SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE." TRY WHIP, LLC DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, NOT EXPRESSLY SET OUT IN THESE TERMS, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN ADDITION, TRY WHIP, LLC MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE REGARDING THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, OR AVAILABILITY OF THE SERVICES OR ANY SERVICES OR GOODS REQUESTED THROUGH THE USE OF THE SERVICES, OR THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. TRY WHIP, LLC DOES NOT GUARANTEE THE QUALITY, SUITABILITY, SAFETY OR ABILITY OF THIRD PARTY PROVIDERS. YOU AGREE THAT THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE SERVICES, AND ANY SERVICE OR GOOD REQUESTED IN CONNECTION THEREWITH, REMAINS SOLELY WITH YOU, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.
TRY WHIP, LLC SHALL NOT BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOST DATA, PERSONAL INJURY, OR PROPERTY DAMAGE RELATED TO, IN CONNECTION WITH, OR OTHERWISE RESULTING FROM ANY USE OF THE SERVICES, REGARDLESS OF THE NEGLIGENCE (EITHER ACTIVE, AFFIRMATIVE, SOLE, OR CONCURRENT) OF TRY WHIP, LLC, EVEN IF TRY WHIP, LLC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
TRY WHIP, LLC SHALL NOT BE LIABLE FOR ANY DAMAGES, LIABILITY OR LOSSES ARISING OUT OF: (i) YOUR USE OF OR RELIANCE ON THE SERVICES OR YOUR INABILITY TO ACCESS OR USE THE SERVICES; OR (ii) ANY TRANSACTION OR RELATIONSHIP BETWEEN YOU AND ANY THIRD PARTY PROVIDER, EVEN IF TRY WHIP, LLC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TRY WHIP, LLC SHALL NOT BE LIABLE FOR DELAY OR FAILURE IN PERFORMANCE RESULTING FROM CAUSES BEYOND TRY WHIP, LLC'S REASONABLE CONTROL. YOU ACKNOWLEDGE THAT THIRD PARTY PROVIDERS PROVIDING TRANSPORTATION SERVICES REQUESTED THROUGH SOME REQUEST PRODUCTS MAY OFFER RIDESHARING OR PEER-TO-PEER TRANSPORTATION SERVICES AND MAY NOT BE PROFESSIONALLY LICENSED OR PERMITTED.
THE SERVICES MAY BE USED BY YOU TO REQUEST AND SCHEDULE TRANSPORTATION, GOODS, OR LOGISTICS SERVICES WITH THIRD PARTY PROVIDERS, BUT YOU AGREE THAT TRY WHIP, LLC HAS NO RESPONSIBILITY OR LIABILITY TO YOU RELATED TO ANY TRANSPORTATION, GOODS OR LOGISTICS SERVICES PROVIDED TO YOU BY THIRD PARTY PROVIDERS OTHER THAN AS EXPRESSLY SET FORTH IN THESE TERMS.
THE LIMITATIONS AND DISCLAIMER IN THIS SECTION DO NOT PURPORT TO LIMIT LIABILITY OR ALTER YOUR RIGHTS AS A CONSUMER THAT CANNOT BE EXCLUDED UNDER APPLICABLE LAW. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, TRY WHIP, LLC’S LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW. THIS PROVISION SHALL HAVE NO EFFECT ON TRY WHIP, LLC’S CHOICE OF LAW PROVISION SET FORTH BELOW.
You agree to indemnify and hold TRY WHIP, LLC and its affiliates and their officers, directors, employees, and agents harmless from any and all claims, demands, losses, liabilities, and expenses (including attorneys' fees), arising out of or in connection with: (i) your use of the Services or services or goods obtained through your use of the Services; (ii) your breach or violation of any of these Terms; (iii) TRY WHIP, LLC's use of your Content; or (iv) your violation of the rights of any Third Party, including Third Party Providers.
You may not assign these Terms without TRY WHIP, LLC's prior written approval. TRY WHIP, LLC may assign these Terms without your consent to: (i) a subsidiary or affiliate; (ii) an acquirer of TRY WHIP, LLC's equity, business or assets; or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. No joint venture, partnership, employment, or agency relationship exists between you, TRY WHIP, LLC or any Third Party Provider as a result of this Agreement or use of the Services. If any provision of these Terms is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced to the fullest extent under law. TRY WHIP, LLC's failure to enforce any right or provision in these Terms shall not constitute a waiver of such right or provision unless acknowledged and agreed to by TRY WHIP, LLC in writing. This provision shall not affect the Severability and Survivability section of the Arbitration Agreement of these Terms.
This Agreement constitutes the entire agreement between you and us regarding the use of the Site and Services. Our failure to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. The word "including" means "including without limitation." If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. This Agreement, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without TRY WHIP, LLC’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. TRY WHIP, LLC may freely assign, subcontract, and delegate its rights and obligations under this Agreement. The terms of this Agreement shall be binding upon assignees.
The provisions of this Agreement are intended solely for the benefit of you and TRY WHIP, LLC and its suppliers and shall create no rights or obligations enforceable by any third party unless such beneficiaries are expressly set forth herein.
TRY WHIP, LLC reserves the right, at any time, to modify, suspend, or discontinue the Site or Services or any part thereof with or without notice. You agree that TRY WHIP, LLC will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Site or Services or any part thereof.
You will comply with the terms of this Agreement, our policies and all applicable laws and regulations. You will be solely responsible for the use of the Site and Services. You will adopt and maintain reasonable and appropriate security precautions for your Account to prevent its disclosure or use by unauthorized persons.
You acknowledge that all of the intellectual property rights, including copyrights, patents, trademarks, and trade secrets, in the Site and Services are owned by TRY WHIP, LLC or TRY WHIP, LLC's suppliers. The provision of the Site, Services, and/or Software, does not transfer to you or any third party any rights, title, or interest in or to such intellectual property rights. TRY WHIP, LLC and its suppliers reserve all rights not granted in this Agreement. If you provide TRY WHIP, LLC any feedback or suggestions regarding the Site, Services, and/or Software, or any element or component thereof ("Feedback"), you hereby irrevocably and unconditionally assign to TRY WHIP, LLC all worldwide right, title, and interest in the Feedback and agree that TRY WHIP, LLC shall have the right to use such Feedback and related information in any manner it deems appropriate without any further obligation to you. You agree that Feedback is TRY WHIP, LLC's confidential information.
If any portion of this Agreement is found to be unenforceable or unlawful for any reason, (1) the unenforceable or unlawful provision shall be severed from these Terms; and (2) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of the Agreement.